Snevily v. Read

The opinion of the Court was delivered by Sergeant, J. A promise made or security given to the plain [401] tiff by a defendant who is in custody under a capias ad satisfaciendum, in consideration of his discharging such defendant from custody, is binding; and therefore, if in this case the plaintiff discharged the defendant in consideration of the defendant giving him his check for a portion of the debt, the defendant would be liable in an action to recover the amount of the check. So, if the defendant promised to pay the debt, or a portion of it, in consideration of the discharge. But the position laid down by the court is much broader. It is, that though the arrest and discharge extinguished the debt so far as the judgment and execution were concerned, yet a subsequent promise to pay would not be nudum pactum. And again, that there was still a moral obligation which would support a promise. If the plaintiff arrests a defendant on a capias ad saiisfaciendum, and imprisons him, and then voluntarily discharges him, the law has always considered it as satisfaction of the debt. It is not only an extinguishment of the judgment, but a voluntary release of the means of satisfaction, which, in contemplation of law, are in the hands of the plaintiff; in addition to which, it is a release for a price received, not in money, but in the seizure and imprisonment of the defendant. The common law regards personal liberty as of the highest price. Lord C. J. Hobart cites the aphorism, corpus humanum non recipit estimationem. Hob. 59. Hence it has been repeatedly held, that the arrest of a debtor on a capias ad satisfaciendum, and a subsequent discharge from arrest by the consent of the creditor, extinguishes the judgment. Ransom v. Keyes, 9 Cow. 128. And these cases, as to the discharge of a defendant on execution, proceed on the ground of its being considered that the plaintiff received satisfaction in law, by having his debtor once in custody on execution. Crary v. James, 6 Johns. 51; Yates v. Renssellaer, 5 Johns. 364. Then what moral obligation is there upon the debtor to pay a debt from which his creditor has voluntarily released him, after receiving what the law deems satisfaction ? I am not able to perceive any. It is true that it was held in Willing v. Peters, 12 Serg. & Rawle 182, that if a debtor has been voluntarily released by his creditor, a moral obligation to pay the debt still exists, sufficient to support a subsequent promise to pay the debt. That case went a great way, considering that writers on moral law lay it down that if a creditor restore the instrument of obligation, or cancel or destroy it with his own free consent, and with the privity of the debtor, it shall be supposed that the debt is forgiven. Puffendorff, B. III, c. 6, sect. 16. The present case, however,goes beyond that: there is a satisfaction received; not only in the imprisonment of the person of the defendant, but also in the new security given as a condition or consideration of the release. To that, therefore, we think the plaintiff must look; and that a subsequent promise to pay the judgment, is without consideration, and void in law. The case is not like the [402] release of a debtor by a bankrupt or insolvent act, or a debt barred by the statute of limitations. These discharges are all by act of law, which does no one an injury. But in the present case, it is by the voluntary act of the party himself, and under circumstances entirely different. It is true that this kind of satisfaction has in our times less value than it formerly had, because, in the changes of society, the facilities of the debtor to procure his discharge from imprisonment have been much extended, and the creditor is now obliged to look for payment rather to the property of his debtor than to his person. Hence, our new code has changed the law on the subject. For by sect. 31 of the act of 16th of June 1S36, relating to executions, if the creditor discharges his debtor from imprisonment on a capias ad satisfaciendum, at the request of the debtor, his remedies on the judgment are to remain the same as if such capias ad satisfaciendum had not been issued. But the case before us occurred in the year 1832, and must be judged by the law as it then stood. We therefore think the court erred in its direction to the jury, that a subsequent promise was binding, and that there remained a moral obligation to pay the debt. The plaintiff’s cause of action is on the check or other engagement, in consideration of which the defendant was discharged. I shall now notice particularly the defendant’s bill of exceptions and other points. 1. The first bill of exceptions is to the admission of the deposition of Mr Shoch. The objection to this is, that it is in the handwriting of Mr Shoch, and that it was sworn to after it was made. But neither of these appears in the record before us to be the case. We have no means of inquiring, nor the right to inquire, in whose handwriting the deposition is. If it was ás stated, it should have been shown to the court below, and should appear on the record. So as to the other objection. The beginning of the deposition states that “Samuel Shoch appeared on the 21st of November, and was first duly sivorn.” The certificate below is, “ sworn and subscribed at my office, on the 21st of November.” Something was said about filing; but the paper book gives us no information on this head to enable us to decide it. 2. The second bill is to the admission of the check. From the manner in which the declaration is framed, it is not easy to see the relevancy of this evidence to the declaration, nor its materiality, unless as part of the resgestm, and to make more probable the allegation of a subsequent promise. We think in the latter point of view it might bé admissible. The first, second, third, fourth, and fifth answers of the court have been already adverted to. In the sixth, we think the court were right. It is proper to remark that the declaration is on its face defective, and had the defendant demurred to it, it could not have been sup [403] ported. But this the defendant did not do, but went to trial on the merits, under the pleas of non assumpsit and payment. Neither has this defect been moved in arrest of judgment, or assigned as error. The defendant asked the court to charge the jury to that effect, which was not the proper mode to take advantage of it. Judgment reversed, and a venire facias de novo awarded.