Poucher v. Holley

3 Wend. 184 | N.Y. Sup. Ct. | 1829

By the Court,

Sutherland, J.

The learned judge appears to me to have erred in two particulars ; 1. In stating that a voluntary execution of the limit bond to the defendant by Ranny, after he had been discharged from the limits by Poucher, the plaintiff, would constitute him a prisoner to the defendant, so that the defendant would be liable for any subsequent escape. 2. In stating, that although the jury might be satisfied that Poucher had discharged Ranny from the limits, still, unless they were also satisfied that he intended, at the fáme ai¡eged¡ f0 g{m Ranny a legal discharge from the debt, the defendant would be liable. " In Powers v, Wilson, (7 Cowen, 276,) the court says, it is well settled that if a creditor gives his debtor, who is in execution permission to go at large beyond the gaol liberties, the judgment is discharged, and the plaintiff can neither issue a new execution, nor maintain an action for the escape against the sheriff, and the following cases are cited in support of the position; Barnes, 205; 2 East, 243; 7 T. R. 420; 6 T. R. 525; 5 Johns R. 364; 11 id. 476; 2 Johns. Ch. R. 430 ; 16 Johns. R. 183 ; 1 Barn. & Ald. 597; in all of which the same doctrine is clearly and distinctly advanced. If the judgment is discharged, the bond for the liberties subsequently given is a mere 'nullity; it has no efficacy independently of the judgment, and that cannot be revived and restored by the giving of a new bond for the limits ; not only the judgment but the debt is gone. No matter what the actual intention of the plaintiff in the execution may have been, the judgment of law is, that a voluntary discharge of his creditor from the limits discharges the judgment and the debt. In almost all the reported cases it appears affirmatively that nothing was more remote from the intention of the plaintiffs than to discharge their judgment, or in any manner impair their security. In Yates v. Van Rensselaer & Schermerhorn, (5 Johns. R. 364,) the defendants covenanted and agreed that the plaintiff might re-take them on the same execution or issue a new execution against them and confine them until the debt and costs were paid; and yet- it was held, that as the plaintiff had given them permission to go beyond the gaol liberties, the debt was discharged, and the arrest of the defendants was illegal and amounted to false imprisonment. A new trial must therefore be granted.