Elkins v. Zacharie

| La. | Jun 15, 1834

Mathews, J.,

delivered the opinion of the court.

This suit is brought on a bond given by the defendants in which Palfrey is principal, and Zacharie surety. The bond was executed in pursuance of an act of the legislature fixing limits or bounds for the public jail of the city of N. Orleans, and authorising persons in the custody of the sheriff, whether on mesne process or under execution, on giving bond with good and sufficient security to obtain the privilege of the prison bounds, &c.

In the present case the action is prosecuted against the surety alone, the principal having obtained the benefit of our insolvent laws and consequently being released from civil pursuits. Judgment was rendered against the defendant. Zacharie in the court below, from which he appealed.

An exception was taken on the part of the defendant relative to the manner in which the order requiring the sheriff to assign the bond was made. This exception had the appear- . . , . s , , , , , „ . anee oí some weight when first presented: but on reflection, * 7 we are °pini°n with the judge a quo, that the error or mistake in relation to this matter was merely clerical, and ought n°t to be allowed to affect the rights and interest of the plaintiff in the action.

*651As to the merits of the cause, its decission depends on the effect which ought to be given to one single fact, that is, the-alleged permission granted by the plaintiff allowing the defendant in execution to absent himself, &c. The evidence fully ■ establishes that the defendant Palfrey, who had been arrested on a ca. sa. and given bond as required by law to remain within the prison limits, did go beyond those limits. Unless he was authorised so to do, either by leave of the court, or by the order or permission of the plaintiff in execution, the bond was forfeited by this act of the defendant and his surety rendered liable to pay all consequential damages to the person at whose suit he had been arrested and imprisoned. But it is contended in favor of the surety, that the principal by departing from the prison hounds under the circumstances in which it was done did not break his covenant, and consequently no obligation was imposed on the surety to pay the penalty, or make satisfaction to the plaintiff on account of injury done or damages suffered by him. Because the violation of the conditions of the bond was the consequence of an act done in pursuance of the consent and permission of the person at whose instance the debtor was confined within the limits of the jail. The existence of this consent and permission rests on the interpretation which must be given to a note addressed by the plaintiff to Mr. Eustis his counsel in this case, and who had acted for him in obtaining the judgment and issuing the capias ad satisfaciendum on which Palfrey had been arrested and imprisoned. This note in the shape of an open letter was delivered to the defendant in execution and addressed as above stated. It is in the following words, “ Mr. Palfrey wishes to leave the city for his family, to be absent ten days. As far as I am interested in the suit against him, I consent to suspend proceedings against him, and that he may be absent that time.'1'1

The only condition or limitation contained in this instrument, is such limitation as the interest of the writer was legally subjected to, in the property which he had in the judgment and execution; and in relation to his right of control and use of them. If he had full property and *652control over this judgment and execution, then his consent that the defendant might absent himself from the prison bounds for the space of ten days was co-extensive with the interest and control which he held over the instrument which authorised the imprisonment, and the permission granted was unconditional and without limit or reserve, judgment and ecu sa. under which Palfrey’s confine-J J ment took place, are exclusively in the name of Elkins, in * J this manner the first was obtained and the last issued. They were therefore in a legal point of view entirely his property, and the measures pursued under them were severe legal steps. By his own power through the aid of the court he bound the defendant and by his individual authority he had a right to release him, which he did. The evidence of the case does not clearly show that any other v Persons were at the time interested in this judgment and execution either legally or equitably. Consequently to make the consent and permission granted by the plaintiffs available, did not require the concurrence of any one else; and therefore the circumstance of the note having been addressed to Mr. Eustis ought not to be permitted to destroy the right and privilege which the defendant acquired under it.

or^impriaoneá añaa execution exclusively mne plaintiff, although others may have an mterest therein; and after having; tiio prisor” limits j executionnt‘givcs “'consent, I”/™ to aLenMtimseif wiiichnthoadebtof avails himself and [leaves the prison limits inghoutLc° other ed^the surltyln r Ceby h°ais. charged. The plaintiff in execution for whose benefit the prison bond is taken is the only person who can ditioni andchis Slfbe’^bslnt forever1' XdS ges the smety.

The plaintiff in execution for whose benefit the prison limits bond was taken is the only person who had power over - its conditions; he consented to release them, (at least temv porairly,) he agreed to let the defendant go at large for x J ' ° 0 ° period of ten days; he was willing that his adversary should enjoy his liberty, should be released from the restraint imposed by the bond. Volenti non Jit injuria. this consent the surety was discharged from all obligations created by that bond; and being once discharged it could never have effect against him afterwards.

It is therefore ordered, &c., that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered, &c., that judgment be here entered for the defendant, Zacharie, with costs in both courts.