Allen v. Craig

Ford, J. It appears that Allen was committed on the 29th. July; that McKiernan was committed on the 20th August, and discharged on the 21st, and the notice to take depositions, is. dated and given the next day, the 22d. The notice was thus, given, as soon as possible, and contains all the reasons relied upon by the defendant. If the plaintiff had any testimony, he could have produced it, and he has had all the benefit of the cross-examination of the witnesses. I am of the opinion, that the notice is sufficient, and that the application ought to be heard.. The defendant is in actual confinement, and if he is illegally deprived of his liberty, he ought to be released. Drake, J. I think, that full notice has been given. The' plaintiff has been apprised of all the reasons relied upon by the defendant. The applicant ought now to be heard. The Chief Justice gave no opinion, as he had been employed, as counsel in the cause, before his appointment. W. Pennington then read the depositions which had been taken, and was proceeding to read the ca. sa. and fi. fa. which had been issued out of this court and returned, when Dickerson objected, as they had not been made exhibits in the cause. Vanarsdale answers, that this court will not require the-party to produce a certified copy of its own records. By the Court. The papers may be read. They are in the same cause, and a part of the files of this court. W. Pennington. This is an application on the part of Daniel K. Allen, to enter satisfaction of the judgment and to set aside the ca. sa. . 1. The ca. sa. is defective. It is a ca. sa. post fi. fa., and. ought to have been issued for the balance due on the judgment. The property of Allen has been levied on, by virtue of the fi.. fa., and he ought to be credited for the amount raised. [113] 2. Allen ought to be discharged, because Craig, the plaintiff, has released Joseph Starke, one of the defendants. It appears, from exhibit D, that on the 22d of June, 1833, Craig received five hundred dollars from this defendant, and gave him a receipt and discharge from the judgment. The paper is carefully drawn with a view to get round the very difficulty now insisted upon. But it is a release, an agreement to free liimfrom liability ; cites 2 Saund. Rep. 48, note a. The party releasing, cannot qualify the release. 5 Bac. abr. tit. Release, L. 713; Hobart’s Rep. 70. He also cited to show the effect of a release, 12 Mod-n Rep. 552 ; 7 John. Rep. 207. 3. The discharge of Cobb and McKiernan, will entitle Allen to his discharge. 6 T. R. 425; 1 Root Rep. 502. He insisted, that on this point, there was no difference between trespass and contract. The judgment was all the court would look to, and they would not look beyond it to examine the foundation of the suit. 2 Mason’s Rep. 268. Vanarsdale, on the same side, cited, 13 Mass. Rep. 150 ; 17 Mass. R. 584; 2 Wash. C. C. Rep. 266; 4 Eng. Com. L. Rep, 419; 18 Vin. abr. 353, tit. Release, letter G. A. P. Dickerson, for the plaintiff. 1. As to the objection to the ca. sa. It is true, that the word residue, is not used in the writ, but the defendant is credited with the amount of the sheriff’s levy. We are not bound to look beyond the return of the sheriff, to ascertain the amount raised on the fi. fa. As to the practice in such cases, he cited Cro. Eliz. 160 ; 2 Tidd Prac. 934. A party may issue a ca. sa. after a fi. fa. 4 John. Rep. 410. But the court may amend the writ. 1 John, cases 29; 3 Caines Rep. 98 ; John. Rep. 184; 1 Bin. Rep. 486. 2. He contended, that the instrument executed by the plaintiff, to Starke, is not such a release as will discharge Allen. It was not so intended by the parties to it. It is a mere.covenant to release. Its language virtually is, I will do anything my counsel advises, which shall discharge you without impairing my right against the other defendants. To discharge a defendant without payment, the instrument must amount to a techni [114] cal release. 2 John. Rep. 448; 7 John. 207. This is a mere covenant not to hold Starke liable, and no release. 11 Modern 254; 8 T. R. 168; 6 T. R. 525. 3. He contended, that the discharge of Cobb and Mclviernan, did not entitle Allen to his discharge. This is a judgment in trespass. The plaintiff may hold one of the defendants alone liable before verdict and after trial; and why not after judgment. The liability of defendants in trespass, is separate, and if one pays the whole, he cannot make his co-defendants contribute. The discharge of the one, ought not then to operate as a discharge to the other. There is á marked distinction between cases of tort and contract. , Vanarsdale in reply. The ca. sa. purports- to have issued after a fi. fa. and it ought to appear by the return of the sheriff what has become of the property levied on. The credit endorsed does not alter the case; the amount to be raised, is according to the writ. An application to amend, is made to the discretion of the court, and in a case involving personal liberty, will not be favorably entertained. 2. From the days of Hobart, to the present, the law has been settled, that the release of one co-defendant, is á release to the other. The proviso or condition, that Allen should not be discharged, is void. 5. Bac. abr. 713. The ease cited from 2 Wash. C. C. Rep. 266, shows the extent to which this doctrine is carried. Even a court of equity, will not relieve the defendant. But it is said, that the release must be a technical release. This release is under seal, is on a good and valuable consideration, and contains apt and proper words. 17 Mas. Rep. 584. It has been called on the other side, a covenant not to sue ; but such a covenant cambe made only before suit brought, and cannot be applied to this instrument, which relates to a judgment. 3. Two of the defendants, Cobb and McKiernan, have been discharged from prison, and this entitles the other defendants to their discharge. 6 T. R. 625. All cases cited in this last [115] case, establish the principle contended for, and show, tl at if a defendant taken on a ca. sa. is once discharged, he cannot be re-taken, and that the legal effect of such discharge, is a satisfaction of the judgment. There is no difference between tort and contract, as respects this principle. The case from 2 Mason Rep. 268, shows that the court will not enquire into this. The case from 4 Eng. Com. Law. Rep. 419, was a case of trespass, and directly in point. Craig’s assent to the discharge of McKiernan, ratifies that discharge. The Court directed the following entry to be made by the clerk, on the minutes of the Court; and it was accordingly entered. “The above named defendants, having been arrested and imprisoned by the sheriff of the county of Essex, upon the capias ad satisfaciendum issued in this cause, the plaintiff gave instructions to the said sheriff, to discharge the said McKiernan out of custody, and let him go at large on his paying to the sheriff, the sum of thirty dollars ; accordingly the said McKiernan paid this sum to the sheriff, Avho discharged him from custody and paid the money over to the plaintiff; whereupon, Daniel K. Allen, another of the co-defendants, moves to have satisfaction of the said judgment entered of record, and to be discharged out of custody on said writ, himself. Upon hearing counsel upon both sides, touching the aforesaid matters—it is ordered by the Court, if the said Daniel K. Allen shall stipulate in writing, under his hand, to bring no action whatever on account of the said arrest or imprisonment, and deliver the same to the sheriff of the county of Essex, for the benefit of those who may be concerned therein, that then the said D. K. Allen be discharged from custody under the said writ, and that satisfaction of the said judgment be entered of record; but the court refuse to interpose for his relief in this summary manner upon any other terms.” Cited in Silvers & Brittin ads. Reynolds, 2 Harr. 280.