Bonesteel v. Garlinghouse

60 Barb. 338 | N.Y. Sup. Ct. | 1871

By the Court, Johnson, J.

If a creditor give his debtor in execution permission to go at large, beyond the jail or its liberties, the judgment is absolutely discharged. (Powers v. Wilson, 7 Cowen 274. Lathrop v. Briggs, 8 id. 171. Ransom v. Keyes, 9 id. 128. Poucher v. Holley, 3 Wend. 184. Kasson v. People ex rel. Rease, 44 Barb. 347.) And this is so, even where the debtor agrees, in consideration of such permission, that he will still be bound by the judgment, and that the plaintiff may re-arrest him on another execution, in case he does not pay the judgment. ( Yates v. Van Rensselaer, 5 John. 364. Blackburn v. Stupart, 2 Hast, 243. Jaques v. Withy, 1 T. R. 557.) This rule has been maintained, inflexibly, by an unbroken current of authority, from a vei’y early period to the present time. In Blackburn v. Stupart, (supra,) the defendant was arrested on a second execution, on his failure to pay .the balance due on the judgment, as he had agreed, in order to obtain the plaintiff’s permission to go at large. The defendant, in order to procure his discharge from this second arrest, paid the sheriff the balance due on the judgment, and the additional costs; and after his discharge by the sheriff", moved to have the second execution set aside, and the money in the sheriff’s hands restored to him, which was granted, on a rule to show cause, and the rule made absolute. Grose, J., said that although the defendant’s conduct had been very scandalous, “it would be very dangerous to permit the law to be unsettled.”

In Clark v. Clement, (6 T. R. 525,) the defendant had been arrested and discharged on certain terms, and on being arrested the second time, the execution was not only set aside, but satisfaction of the judgment was entered upon the rolls, although the judgment had not been paid, except by the arrest.

In Basset v. Salter, (2 Mod. 136,) the court says: “If there be an escape by the plaintiff’s consent, though he *did not intend it, the law is hard, that the debt should thereby be discharged.”

All the cases go upon the ground that the debt is satisfied by the arrest of the person; and the judgment is of no further validity or force, if the plaintiff has consented to the discharge from the arrest. If the discharge is by the act of the law, it is otherwise. The rule being thus settled, the court has no power to change it, but must administer it as it is found. Even if we should be of the opinion that the rule does not rest in sound reason at the present day, it is not our province to disturb it. If the arrest operates as a satisfaction of the judgment, as the authorities all hold, where the discharge therefrom has not been by the act or operation of law, but by the act and consent of the plaintiff in the judgment, such judgment ought to be satisfied of record, as was done in Clark v. Clement, (supra.) It ought not to be allowed to remain of record, as an apparent claim and cloud against the defendant.

The defendant here was released by the plaintiffs, upon his written promise “ that such release, shall not affect or impair my liability on the judgment in this action, or my liability to arrest after the appeal shall have been decided and the stay inoperative.”

The learned justice, at special term, admitted the general rule, but held that it did not apply to this case, because, as he understood it,' the judgment was recovered by the plaintiffs in their official character, as commissioners of the board of excise of Ontario county, for penalties incurred by the defendant by reason of his violation of the excise law. There is. certainly nothing in the papers before us, from beginning to end, to show what the cause of the action was, upon which the judgment was recovered. The judge, at special term, seems to have inferred it from the title of the action, merely. Indeed he so states in his opinion. If this were a material fact in the case, it is clear, I think, that the mere circumstance of the addition of “the commissioners of the board of excise of Ontario county” to the names of the plaintiffs, in the title, is not sufficient to establish it. Such an addition to the name of a party plaintiff, without anything 'else, is, in law, a mere description of the person, and indicates that the action is the private action of such person. (Merritt v. Seaman, 6 N. Y. 168. Gould v. Glass, 19 Barb. 179.)

[Fourth Department, General Term, at Rochester, September 4, 1871.

It may well be doubted, whether the principle would be changed, even if it were shown that the actioh was by the plaintiffs in their official character, and the recovery for penalties, as supposed. It is unnecessary, however, to decide this, as no such fact is made to appear, and the law will not presume it. As the case stood before the special term, the motion ought to have been granted.

The order of the special term must therefore be reversed, and the order asked for granted, with costs of the appeal, mm ' mm

Mullin, P. J., and Johnson and Talcott, Justices.]