Carr v. Mason , 44 Me. 77 ( 1857 )

Cutting, J.

It appears that at the October term of this court, a judgment was recovered in favor of the plaintiff, against Mason and others, for the sum of $502 damages, and $7,33 costs of suit. That on an execution duly issued on that judgment, Mason was arrested by the officer, and on October 5, 1853, was liberated by giving the bond now in suit, the condition of which was, that he should in six months take the oath proscribed by law, pay the debt, or deliver himself into the custody of the keeper of the jail. And it does not appear that within the six months he fulfilled the condition. Consequently the bond became forfeited, and according to the provision of R. S., ch. 148, s. 39, judgment should be rendered against him and his co-obligors for the amount of the execution, costs, &c., unless they can show a legal defence against the recovery of the whole or any part.

On March 8, 1855, when this suit was commenced, the plaintiffs claim under the statute remained unaffected by any act of either party. It is now contended, that by reason of certain subsequent proceedings instituted on behalf of the judgment debtors, and action taken thereon by this court, the judgment named in the bond has been vacated, released, or so diminished as to have lost its identity. Neither of which positions can be maintained.

It is agreed that “ the record of the original judgment corresponds with the recitals in the execution, and on the margin of said record are the following words: One-half of this judgment released by order of court, April term, 1856. See No. 252 of that term — Dole et als., petitioners, v. J. W. Carr.” Under which is the following entry: “ Review granted, unless one-half of the judgment sought to be reviewed is released in thirty days.” And it further appears that, in pursuance of the order, written releases were duly filed by the party of record and also by the party in interest.

Now what was the legal effect of this release? It could not operate to reverse the judgment, for that could be done only on a writ of error. It might be rendered null perhaps by a judgment under the statute wholly in favor of the plaintiffs in review, Dunlap v. Burnham, 38 Maine R., 112. The entry .in the margin of the record could have been designed only as a reference to the order under the petition, which was that one-half of the judgment should be released. The judgment was not thereby vacated; a subsequent action might have been brought upon it, and a release would not have sustained the plea of nul tiel record, but must have been pleaded in discharge. 1 Chit. Plead., 481. And under such a plea, evidence of a release of a part could not be extended by implication so as to release the whole. The legal operation of the release was only to be in satisfaction and discharge of a moiety of the judgment, which probably was, originally recovered for a moiety too much. It was designed to obviate the necessity of a new trial.

What might have been the result of all the proceedings subsequent to the breach of the bond, if the plaintiff had claimed judgment under s. 39 of the chapter before cited, it becomes unnecessary to inquire, since in good faith he demands judgment only for one-half of his debt, costs and legal interest, which he is entitled to recover; and for that amount the defendants must be defaulted.