BRACKETT vs. WINSLOW & AL.

for, in order to prevent the necessity of any further account or settlement, on this subject, between himself and his said clients.

On the 31st of the same March, Brackett paid to the jailer the amount of poundage and other fees on the execution, the receipt of which was endorsed by the jailer on the copy of the execution in his hands. Brackett, after he was committed, and before the writ of habeas corpus hereafter mentioned was sued out, caused notice to be given to the defendants of his intention to take the oath for his discharge as a poor debtor; whereupon Winslow consulted with his said attorney, and was told by him, that if any opposition was made to that discharge, Peters ought to pay

the expense of it. Brackett also, after the said 31st of [156] *March, caused a tender to be made in his behalf to the defendants and to their said attorney, of the sum of fifteen dollars, to pay the costs, if any, incurred by them on the said alias, and demanded of them an order on the jailer, or other proper authority, for his discharge, which they refused.

He then sued out a writ of habeas corpus, to obtain his discharge; out the Court declined to investigate and ascertain the facts in that summary manner; as he had an adequate remedy, if injured, by this process of audita querela, in which any facts in dispute might be settled by a jury. The plaintiff, therefore, sued out this writ on the 13th of April, 1819, and was discharged from his imprisonment on giving bail, as before mentioned.

The defendants contended at the trial, that the transactions on the 22d of March, with the subsequent proceedings, did not amount to a payment of the debt, or a discharge of the execution, on which the plaintiff was committed; and that, if they did, the plaintiff might have departed from the jail, without any legal process; and that he could not, therefore, maintain this suit.

The judge was inclined to a different opinion on both these points, and thereupon it was agreed that the defendants should be defaulted, and if the Court should be of opinion that the plaintiff was entitled to prevail, the default was to stand, and judgment to be entered accordingly; with such damages as should be assessed by an assessor, to be appointed by the Court, or agreed on by the parties. If the Court should be of a different opinion, the default was to be set aside, and the plaintiff to become nonsuit.

B. Whitman, for the defendants. Neither the execution nor the judgment was satisfied by the payment of the money by Peters. The money was paid with a particular understanding of all the parties to the transaction that it was to have no such effect. It was for this reason that a separate receipt was given, instead of the usual method of endorsing it upon the execution. If the plaintiff

BRACKETT vs. WINSLOW & AL.

had afterwards * paid his moiety of the judgment, as in [* 157 ] all justice he should have done, that money was to be

paid over to Peters. It will be a singular construction of a transaction, if that should be held a payment and discharge of a judgment, which neither the person paying, nor paying, nor the person receiving, understood or intended should have that effect. This process lies, according to all the authorities, only when the execution was issued illegally. That was not the case here The execution was issued lawfully, and the plaintiff was lawfully imprisoned upon it.

But if this be otherwise, and the Court shall be of opinion that the execution was void, as having issued after satisfaction of the judgment, still it is believed that the plaintiff, in that case being unlawfully restrained, had a right at any moment to leave the prison, and free himself from all confinement, as he was under no physical restraint, having the liberty of the prison-yard. Having his liberty then in his own power, it was his folly not to use it. It was trifling with this extraordinary process of the Court, to sue it under such circumstances, and the action ought now to be dismissed.

S. D. Parker, for the plaintiff, relied on the case of Hammatt vs. Wyman & Al. (1) as directly in point, to show the plaintiff to have been unlawfully imprisoned. The judgment was completely satisfied, as it respected the creditors, by the payment of Peters to the officer. The remedy of the creditors was after that upon the officer. Peters could never have been arrested on the alias execution, having made satisfaction and having been permitted to go at large. After the creditors had received satisfaction, they had no right to sue another execution. It was a gross misuser of the process of the Court, for which they might well be proceeded against, as for a contempt.

It is true the plaintiff might have escaped from the custody of the jailer, and broken over the limits. But in doing this he would have exposed his sureties to the vexation and uncertainty

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of a suit at law. Instead of so doing, he has applied [* 158 ] to the authority and justice of this Court, by a process

adapted to his case, and upon which right can be administered to all parties (2).

PARKER C. J., delivered the opinion of the Court.

Whether the default in this action was rightly entered or not, depends upon the question, whether the judgment upon which the

(1) 9 Mass. Rep. 138.

(2) Bac. Abr. Title Aud. Quer. C.-2 Leon. 260.-10 Mass. Rep. 103, Lovejoy va Webber.

BRACKETT vs. WINSLOW & AL.

execution issued, whereby the plaintiff was committed, was satisfied before the institution of this suit; for if it was, the execution must have lost its power, having no judgment to rest upon. We think it immaterial whether payment was made before or after the issuing of the alias execution. If before, the execution issued improvidently or fraudulently, and would be therefore void; if after, its virtue was gone, and the plaintiff could not lawfully be held in prison under it.

It is objected that if the plaintiff was not lawfully held, this process does not lie, because he might go at large, or have an action of false imprisonment if detained. But it is no answer to the suit, to say that the plaintiff had another remedy, as was settled in the case of Lovejoy vs. Webber, cited in the argument. Nor can it be allowed the defendants to set up the unlawfulness of their own acts, in defence of the plaintiff's complaint in the present suit.

Our statute, which provides the form of the writ of audita querela, refers to the common law for the principles by which the suit is to be governed; and by the common law, the writ lies although another remedy may exist (3). If a man be taken in execution, after the judgment shall have been satisfied, audita querela is a proper remedy, although trespass might lie against the creditor: so if, after being committed, he shall pay the judgment, and still be detained by order of the creditor. In these cases, the aggrieved party might be relieved by habeas corpus from his imprisonment. But facts may be in dispute, which it is proper a

jury should try; and therefore this process is more suitable * 159 ] than a habeas corpus. Moreover, * in this suit, by our statute, the party may recover damages for his imprisonment, and thus in one suit obtain his liberty, and his damages for the violation of it, instead of being obliged to resort to his action of trespass, after the proceedings upon the habeas corpus shall have een determined.

There is no objection, then, to this process, provided the facts upon which it is founded, viz., payment and satisfaction of the judgment were sufficiently made out at the trial. The facts stated in the judge's report must be taken to be true, as the defendants submitted to a default.

It appears, then, that the plaintiff was committed on the 11th of March, 1819, upon an alias execution which issued upon a judgment recovered at the preceding November term of this Court, against him and one John Peters jointly; that the first execution, which was returnable on the first Tuesday of March, was returned

(3) Stat. 1780, c. 47.-1 Roll. 304, l. 25, 305, l. 20, 22—Jones, 90.--Strange, 1198

BRACKETT vs. WINSLOW & AL.

unsatisfied, without the express consent, but with the knowledge and acquiescence of the present defendants, who were the judgment creditors; they having taken the personal responsibility of the officer who had the execution for the amount of the debt and costs, to be paid by him on the 20th of March. At the time of the commitment of the plaintiff, the defendants had in truth no further interest in the execution, relying altogether upon the contract of the officer. The attorney testifies that it was not the intent of the parties to discharge the judgment, but that the same should remain unsatisfied, in order that Peters, out of whose funds the officer was to comply with his contract, might by an alias execution coerce payment of one half the debt from the plaintiff. This could not lawfully be done. The judgment was virtually satisfied; and it may be doubted, whether the judgment creditors could afterwards have resorted to their execution, if the officer had failed to pay.

But without determining this point, it is sufficient, to maintain this suit, that while the plaintiff remained in prison, the debt was paid by the officer, with the funds of Peters, [* 160] one of the judgment debtors. This must be considered

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as payment, notwithstanding the contrivance for the benefit of Peters. If an action had been brought upon the judgment, it could have been defeated by this evidence, on the plea of payment. Authorities need not be cited to show that a payment by one joint debtor discharges both. An obligation is thereby raised against the other to pay his proportion; but the suit would be an equitable one, and the defendant would be let in to show that he had paid, or that he ought not to pay, according to the equitable circumstances in

the case.

To allow the debtor, who pays, to avail himself of the execution, would be to give him an undue advantage, and enable him to exact the whole debt, or to prevent such equitable set-offs as his companion might have against him. The case of Hammatt vs. Wyman & Al., cited in the argument, is decisive of this point. The facts in that case cannot be distinguished, so far as they affect the principle, from those which occurred in the case at bar.

The creditors in truth received satisfaction of their judgment; and the intention proved was only to set off an appearance against the reality, for the purpose of enabling the debtor, who had paid the money, to do what the law would not authorize him to do Judgment must therefore be entered for the plaintiff.

129

TUCKER US. WELSH.

RICHARD D. TUCKER versus THOMAS WELSH, JUN.

The credit of a witness, who has testified orally or by giving his deposition, may be impeached by showing that he has made a different statement out of court, either before or after he has given his testimony, and it is not necessary that the impeached witness be first inquired of, as to such different statement, cr that he be present when his credit is to be impeached.

ASSUMPSIT upon an order drawn by Silas Penniman, in favor of the plaintiff, upon the defendant, on the 31st of December, 1814, and accepted by him the next day, requesting him to pay to the plaintiff, or his order, whatever amount he might receive [* 161] of John Hancock, Edward Harris, * and James Allen, underwriters on a policy of insurance on the ship Alpha, which policy was placed in the hands of the defendant by Penniman for collection.

At the trial of the cause, which was had at the sittings here after the last March term, before the chief justice, it was proved or admitted that, before the commencement of the action, the defendant had received from the said underwriters the sum for which, with the interest, the verdict was returned, deducting the expenses, &c.

The defence set up was, that the said Silas Penniman had, before drawing the order, assigned the policy to his brother Scammel Penniman, bona fide and for a valuable consideration, viz., to secure the said Scammel for moneys advanced and liabilities incurred by him on account of the said Silas. It was also contended that there was no consideration shown for the order or acceptance. And to prove this, the defendant produced to the jury the policy referred to, with the assignment thereon; and also the deposition of the said Silas, taken under a commission from the court below.

As the order was, on the face of it, absolute and unconditional, as was also the acceptance of the defendant, he was called upon to prove that the plaintiff knew of the previous assignment when he took the order; and was allowed to show, if he was able, that his acceptance was with an understanding on the part of the plaintiff, that it was not to bind the defendant against the operation of the assignment to Silas Penniman. Of this fact, the only evidence was contained in the deposition of the said Silas, before referred to. The plaintiff objected to this evidence, on the ground that, the order and acceptance being absolute, the defendant's liability could not be defeated by parole or verbal testimony. This question was saved for the plaintiff, if the other points in the case should be decided against him.