Sweet v. Palmer — 16 Johns. 181

Majority

p. 181

Sweet against Palmer and Palmer.

Headnote

Si coacreAlthough sentofthe debto/ia exe-‘ ¡ceavent’heiibeí ties of the gaol, will excuse the escape and discharge the judgment, yet an assent or agreement subsequent to the escape, that the debtor may remain out of the limits, is no discharge \ for a right of action for the escape having once accrued, can only be defeated by a release under seal, or an agreement for a valuable consideration.

Where a debtor in execution left the limits on Sunday^ and came to the plaintiff's house, and there obtained from him a written permission to go at large until nine o’clock the next morning, it was held, that the license or permission was no defence to an action for an escape, especially as the debtor obtained it fraudulently» and supposing that he would thereby be discharged from the judgment,

THIS was an action of debt on a bond executed by the defendants, to the sheriff of the county of Onondaga, conditioned that the defendant Erastus D. Palmer, who had been admitted to the liberties of the gaol, should remain a true and faithful prisoner. The suit was brought by the 1 ° J plaintiff, as assignee of the sheriff, and the cause was — tried before the late Chief Justice, at the Onondaga circuit, ”'71010 7 in JWflt) lulo»

p. 182

The plaintiff had recovered a judgment, in the Court of Common Pleas of Onondaga county, against the defendant E. D. Palmer, for 415 dollars and 52 cents. The judgment, cd. sa., execution of the bond, and escape, were, either proved or admitted. The defendants then gave in evi-. dence, under the notice annexed to their plea of the general issue, the following writing signed by the plaintiff t

“ This may certify that I agree to let Erasius D. Palmer„ go at large from the limits of Onondaga gaol, until nine o’clock of the 16th day of June inst. ' Pompey, June 14th,, 1817. Oliver Sweet.”

It was then proved on the part of the plaintiff, that the license, given in evidence by the defendants, was written, by E. D. Palmer, at the house of the plaintiff in Pompey,, ten or twelve miles from the gaol of Onondaga county, on Sunday, the 15th of June, 18.17 that when E. D. Palmer came to the plaintiff’s house on that day, he said he came to get a license from him, to remain off the limits until the next morning, that he might come and see the plaintiff, and would then give him security for the debt, or return immediately to the limits : that on something being said, as to the effect of the license, he answered' that he knew of no advantage which could be taken by him, and that he would take none; that the next morning, the defendants came to the plaintiff’s house, but said very,little on the subject of a settlement, their real object, in which they were defeated, being to. carry off an illegitimate child, of which one of the defendants was the father, from the plaintiff’^ family.

It was further proved, that £, D. Palmer had said in conversation, while he was on the limits, that if he could procure ^ license from the plaintiff to remain off the limits for a short time, it would discharge him from the denjand, and from confinement, and that he would try to get it; and that after he had obtained the license, he said it was a,good . discharge, and that the plaintiff could obtain nothing.

A verdict was found for the plaintiff, subject to the opinion of the Court on the above case.

. Randall, for the plaintiff.

p. 183

Yzlverton, contra,

The evidence clearly shows fraud, and a trick on the part of the defendants ; and we rejoice that the rules of law are such as to prevent the success of their cunning.

The certificate is certainly not binding as a technical release of the debt: and it is settled that, although a pre~ vious consent of the creditor, that the debtor may go off the liberties, will excuse the escape, and discharge the judgment ; yet, a subsequent assent, or agreement, that the debtor may remain off, is no discharge. The right of action for the escape having once accrued, nothing but a release or an agreement for valuable consideration can defeat the action» (Scott v. Peacock, 1 Salk. 271.)

Here the license was after the escape ; and there is no consideration. The fair construction of the certificate is this : “ you have escaped, and I have a right to sue for it 5 but I agree to waive that right, provided you return as a prisoner to the limits, by nine o’clock to-morrow morning.’’ The defendant never returned to the limits, nor was any consideration received by the plaintiff. Besides, if, as in this case, the debtor procured the license by collusion and preconcerted fraud, it would be affrontful to justice, to tolerate such a defence.

The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff.