Grimes v. Turner , 16 Me. 353 ( 1839 )

The opinion of the Court was by

Weston C. J.

The arrest, commitment and bond were the means, afforded by law, to enable the creditor to coerce the payment of his debt. The execution sets forth the duty of the officer and the liability of the debtor. The officer is to cause the amount to be paid and satisfied to the creditor. The latter had an undoubted right to receive it, at the hands of the debtor ; and if he had done so, and had notified the officer accordingly, his precept would not have justified him in arresting the body of the debtor, for the amount originally due on the execution, whatever rights he might have had for his own fees; for ho is to take the body, for the want of goods to satisfy the creditor. And if the creditor has received a partial payment, execution remains to be done only for the balance, with the officer’s fees.

The case finds, that while the execution was in the hands of the officer, and before the arrest of the debtor, the execution creditor admitted, that bo had received of the debtor fifty dollars on the execution, and ordered the officer to allow the same thereon. This was prior to the assignment to Waite, and while Grimes was the real party in interest. The admission was then full evidence of the fact; and the officer was bound to take the direction given him. Hatch v. Dennis, 1 Fairf. 244.

It can make no difference how this sum was paid. There is reason to believe that Grimes allowed it, on account of a previous payment of the same amount by Turner. The former agreement, touching that payment, was for the purpose of showing, that the fifty dollars were not adjusted and allowed in lessening the judgment, as doubtless would have been done, if Grimes had been satisfied, that such a payment had been made. The allowance on the execution was not in pursuance of that agreement, but in consequence of the subsequent positive acceptance by Grimes, of that payment, when assured that it had been made, as so much paid on the execution. Most extraordinary would it be, if that arrangement, dictated by the most obvious principles of justice, is to be defeated by the subsequent proceedings of the officer. He should have arrested the debtor for the balance, and the bond should have been taken accordingly. That is the derivative, based upon the amount, for which the debtor is imprisoned, and the sureties are answerable only for the debt due, cost and interest. In our judgment then, the payment of the fifty dollars, made to the creditor, should be allowed.

As to the question, whether the plaintiff may not have judgment against the principal, it appears to us, that there had been an acceptance of all, that was equitably due, prior to the suit.

In the assignment to Waite, provision is made to secure the cost, which belonged to the attorney, Mr. Chase. Thirty-five dollars, being its amount, within a fraction, were paid by Turner, to the acceptance of Chase, although more than nine months from the date of the bond. It was competent for him to adjust this part of the claim; and of this Waite had no right to complain. The sum, for which execution was to be done, was $170,60, including the fees of the officer. Deducting therefrom the fifty dollars paid to Grimes, and the thirty-five dollars paid to Chase, there would remain due to Waite, $85,60, which with interest thereon, he was entitled to receive. Within eight days after the time, when by the condition of the bond the principal should have surrendered himself, Waite received from him a larger sum, than the balance and interest; and three months afterwards, an additional sum of ten dollars.

The bond, having been given for more than double the amount, for which the debtor was lawfully imprisoned, can be good, if at all, only as a bond at common law, and as such is subject to chancery, and the plaintiff in interest had, prior to the suit, accepted all that be would be entitled to in equity and good conscience. It was in the nature of a payment and acceptance, post diem, of all which the plaintiff had any equitable right to claim, and must therefore in our judgment be taken to have been received in satisfaction.

Judgment for defendants.