Vidrard v. Fradneburg ( 1877 )

Hardin, J.

It is very well settled that if a creditor gives his debtor permission to go off the jail limits or to go at large, the right to imprison is gone, and the debtor cannot be again taken in execution for the same debt (2 East, 243; 5 Johns., 364; 16 id., 181; 7 Cow., 274; 8 id., 171; 9 id., 128; 3 Wend., 184). So, too, if the creditor consents to discharge one of several defendants all of the defendants are discharged and absolved from liability to arrest on the same judgment (44 Barb., 347). The referee has found as a fact that no agreement was ever made discharging the defendant from execution. That finding must be accepted. But it is said by the learned counsel for the defendant that the legal effect of the statement made by the attorney for the creditor was to discharge the debtor. (1) The attorney had no power to discharge the debtor. (2) The attorney expressly stated he did not wish to and would not waive any of his legal rights. (3) It was not an agreement that the debtor might leave the limits, but if he did that no suit would be brought in the meantime by the attorney. The defendant’s learned counsel refers to Yates agt. Van Rensselaer et al. (5 Johns., 364). In that case the court found there was an agreement amounting to a permission that the defendant might go at large. Here "is no such permission in fact or in legal effect, and therefore that case is not authority for the position taken by the defendant. There was no voluntary discharge by the creditor, and therefore Poucher agt. Halley (3 Wend., 184) does not apply. In Wesson agt. Chamberlain (3 Comst., 333) judge Huelbubt said that in the absence of any consent on the part of the plaintiff in execution the debtor was not discharged. He says: “ As regards the sheriff, the escape was voluntary and he was responsible for it, but the debt was not thereby discharged as against the judgment debtor, and the plaintiff had a right to issue a new execution and retake the defendant (l.Salkeld, 272).

In this case the defendant never had the permission of the plaintiff to go at large, and therefore, in the absence® of legal proceedings for his discharge, he was rightfully taken into custody and remains rightfully imprisoned.

The motion to set aside the second execution and for the discharge of the defendant must be denied, with ten dollars costs, and the referee’s fees will be disbursements.

So ordered.