Bunker vs. Hodgdon

Debt upon a judgment of the court of common pleas.

The defendant pleaded in bar, that after the recovery of the judgment the plaintiff sued out execution thereon, and delivered the same to a deputy sheriff to be served, who, before the return day arrested the defendant, and committed him to gaol, and that he remained a prisoner until he was discharged by order of the plaintiff.

The plaintiff replied, that the defendant was not discharged from imprisonment by his order; upon which issue was joined.

On the trial it appeared that the defendant was arrested and committed, as alleged in his plea, and that while he was detained within the limits, the plaintiff executed a writing, not under seal, addressed to the prison keeper, directing him to discharge the defendant from gaol, on his satisfying the keeper for his board. Whereupon the defendant was discharged from his imprisonment. admitted the principle fhat a discharge of a debtor from arrest on execution discharged the judgment; but contended that such discharge should appear by specialty, o• lm mnudeU upon a valuable consideration, in order to he w nr o, anfión, lie cited 5 N. II. Rep. 26, Nealley vs. Cd'< j

Upon this evidence a verdict was taken for the defendant.

Bartlett, for the plaintiff,

Lyford, for the defendant,

Anciently it seems to have been held, that where a defendant was once imprisoned upon execution, and escaped, the plaintiff should never have a remedy against him again, nor the gaoler retake him, because he was once at large, and so discharged for that time. Plowd. 36, and note a; Hobart. 202, a. Perhaps the rule might have been confined to voluntary escapes. Bac. Abr. Escape, C.

It was afterwards holders., that were the party escaped from custody without the assent of the creditor, he might retake him by a new capias ad satisfaciendum, or have an action of debt, or s-ci. fac. upon the former judgment. 1 Saund. 35, n. 1; 1 Lev. 211, Alanson vs. Butler.

But if the debtor is discharged from imprisonment on execution, by the creditor, or goes at large with his assent, this is still held to operate as a discharge of the judgment, 4 N. H. Rep. 173, Gould vs. Gould, and cases cited; 1 Barn. & Ald. 279, Goodman vs. Chase; 11 Johns. 476, Minton vs. Woodworth; 9 Cowen 138, Ransom vs. Keyes. And it does not appear from the authorities that it is necessary this assent should be shown by writing, or that a consideration must be proved. Dyer 275, a, note; Com. Dig. Escape, D; 1 Salk. 271, Scott vs. Peacock 16 Mass. R. 63, King vs. Goodwin; 7 Cowen 274, Powers vs. Wilson; 8 Cowen 171, Lathrop vs. Briggs; 4 N. H. R. 173. The mere assent of the creditor subsequent to an escape, is no bar to an action upon the judgment. 1 Saund. 35, note, and auth, ante. In such case, immediately upon the debtor being out of custody without authority; the creditor has a right of action upon the judgment: and this right having once accrued, nothing but a release, nr nn agreement for a valuable consideration, can defeat the action. 16 Johns, Rep. 183. Sweet vs. Palmer.

But a discharge from imprisonment by the creditor while the party is still in custody stands upon (litl'-rout mound. It is a license to the debtor to go at large, which need not be by specialty, nor is any consideration necessary to support it. The debtor acts by permission of the creditor, and that permission cannot be annulled or revoked, or its operation defeated, after it has been acted upon. If without consideration, the creditor might revoke the license before it was executed. 4 D. & E. 78, Bagshaw vs. Boosley; 8 East 308, Winter vs. Brockwell; 7 Taunt. 374, Taylor vs. Waters; 7 Bins. 682, Liggins vs. Inge; 7 Johns. 285, Tillotson vs. Preston; 1 Cowen 243, Ferguson vs. Miller; 6 Pick. 455, Wallis vs. Truesdell; 4 Pick 368; 11 Mass. 537; 15 Mass. 153.

So in relation to actions against offiews Ibj e-mpes, — if the escape was by the consent of the creditor, ho could maintain no action for it: and his consent might be shown without specialty. "And let the sheriff or keeper of such ‘ gaole take heed, if it be within a francium or without, that ‘ he do not suffer him [the servant] to go out of > ri-,on by 1 the common writ called replegiare, or by other means, ‘ without assent of his master.” Statute West. 2, c, 11. Upon which Coke remarks: “And this assent may i:e by ‘pároli, and shall be a sufficient barre in on action oí debt 1 brought for the escape.” 2 Inst. 382. Tins statute by a liberal construction has been held to extend to all cases. 2 D. & E. 132; Cro. Car. 329.

But after the escape, a bare assent to it would not operate to discharge the right of action already accrued. Dyer 275, a note; 7 Cowen 274. And so in relation to actions on prison bonds. 16 Johns. 181.

The evidence in this case being sufficient, there must be