LITTLE vs. NEWBURYPORT BANK.

that, when a debtor has been once arrested on execution, and afterwards, by the consent of the creditor, is permitted to go at large, he cannot be again arrested on the same execution; that this rule is subject to some limitations; as where the discharge was procured by the fraud of the debtor; and if the jury, from the evidence, believed that the discharge in this case had been so procured, they should find a verdict for the defendants.

So, if the discharge was procured by the debtor, for his accommodation, under an agreement to surrender himself upon terms, which agreement the debtor should execute and carry into effect, he would not be entitled to any redress for such imprisonment: and the jury were instructed to inquire whether the plaintiff did voluntarily surrender himself, pursuant to the agreement aforesaid; and if they should find that he did so, then their verdict should be for the defendants; that such debtor, having executed his agreement, cannot by law be permitted to contend that the service of the execution is an act of oppres- [* 445 ] sion, and is not entitled to maintain an audita querela for such imprisonment.

The jury found a verdict for the defendants, on the ground that the plaintiff did voluntarily surrender himself. They conversed about the question of fraud, but could not agree respecting it. The verdict was taken, subject to the opinion of the whole Court. If the direction to the jury was wrong, the plaintiff was to have a new trial; otherwise the verdict was to stand.

The cause was argued at the last October term in this county, by Banister for the plaintiff, and White for the defendants.

Banister contended that a debtor, once taken in execution and liberated by the consent of his creditor, can in no case be again charged in execution on the same judgment, unless he has obtained such liberation by fraud. This being the only exception, and which is not found by the jury in this case, the second imprisonment of the plaintiff was against law. The case put by the judge, in his direction to the jury, of a voluntary surrender by the debtor, pursuant to an agreement between him and his creditor, is not supported by the authorities. The plaintiff was discharged by the defendants upon a new contract; and the only remedy of the latter was on that contract. The execution once satisfied, as it had been by the commitment of the judgment debtor, was functus officio; and it could not be revived or put in force by any contract of the parties. If the note, given by the debtor and his sureties, was good in its origin, it could not have been avoided by the makers of it, because the promisees should refuse to do an unlawful act. At any rate,

LITTLE VS. NEWBURYPORT BANK.

the creditors could not hold at the same time two securities for the same debt, and both of them valid against the debtor. (1)

White argued that the agreement under which t. e plaintiff was liberated was entered into by the defendants at the particular request of the plaintiff, and was punctiliously adhered to by the defendants. There was, then, no such act of oppression as would support this process. The parties were competent to [*446] make the * agreement; there was nothing illegal in it, on the part of the defendants, it was purely an act of humanity. The oppression and hardship are wholly with the plaintiff. He would deprive the defendants of all remedy for a debt acknowledged to be due; and the whole ground of his complaint is, that the defendants will not yield to this, but have pursued the very course he had agreed that they should pursue. They were obliged, by their promise, to give up the note, and then, by the plaintiff's own agreement, the execution revived.

This process of audita querela lies for a judgment debtor to be relieved against the oppression of his creditor, and is said, by Judge Blackstone, to be in nature of a bill in equity. (2) The facts in this case show any thing rather than oppression by the defendants; and the plaintiff's object is utterly inconsistent with equity and good conscience. In the case of Lovejoy vs. Webber, (3) it is said by the Court, that in this process, "An allegation of fraud and deceit," on the part of the defendant, "seems to be necessary, and the case supposed must be one where legal process has been abused, and injuriously employed to purposes of fraud and oppression." So far from there having been any thing of this kind in the conduct of the defendants in the case at bar, nothing could have been more humane, fair, and gentle, than their whole treatment of the plaintiff.

On the part of the plaintiff, there is nothing but a mere technical rule. But even this rule, as explained by the authorities, does not apply to the present case. Here was a voluntary surrender of himself by the plaintiff, and that in fulfilment of a legal and fair agreement. The case of Vigers vs. Aldrich went upon another ground; for in that case the debtor had not surrendered himself to be taken a second time in execution; and all the other cases cited for the plaintiff depend on that case.

It is conceded by the plaintiff that fraud on his part would effectually bar him. But unless he intended in good faith to submit

(1) 4 Burr. 2482, Vigers vs. Aldrich.

1 D. & E. 557, Jaques vs. Withy.—6 D. &

E. 525, Clark vs. Clement & Al. — 7 D. & E. 420, Turner vs. Hague.-1 B. & P

Da Costa vs. Davis. Barnes's Notes, 205.

(2) 3 Black. Comm. 406. — See, also, Bac. Abr., tit. Audita Querela.

(3) 10 Mass Rep. 103.

LITTLE OS. NEWBURYPORT BANK.

*

himself to be retaken on the execution, upon the condition agreed, he was guilty of a gross fraud, in taking [*447 ] the benefit of the defendants' agreement and conces

sion, and then attempting to deprive them of all remedy for their demand. If the cause is put on this narrow ground, the defendants are entitled to recover.

PARKER, C. J. The only question presented in this case is, whether the direction of the judge to the jury was right; that if the enlargement from prison was procured by the plaintiff for his accommodation, upon an agreement to return upon the event of his sureties' choosing to surrender him, instead of paying the note they had given for him, and that, if he did voluntarily surrender himself, pursuant to that agreement, he was not entitled to relief under this process.

We are entirely satisfied that this direction was right, and that it is not shown to be otherwise by any of the authorities which have been cited by the plaintiff's counsel. All those authorities tend to establish one principle, which we do not call in question, viz., that, when a judgment debtor has been taken in execution, and discharged by the creditor's consent, he cannot be again taken upon that execution, or upon any other which may be issued upon that judgment; the arrest of the debtor upon execution, by order of the creditor, being considered even as a satisfaction at the common law.

The cases of fraud and of escape, however, are exceptions. So, we apprehend, is the case of a temporary or conditional liberation, under a promise to return if the terms are not complied with, and an actual return into custody in pursuance of such agreement; which is the rule that was stated by the judge in this case.

The authorities cited prove that the debtor cannot be taken again, even in such circumstances; but that the creditor must resort to his action for non-performance of such agreement. But if the agreement is voluntarily performed, the arrest is as at the beginning; the debtor having, by his own act and consent, restored things to the state they were in before his enlargement took place. In the case of Brown vs. Getchell & Al. (4) a bond given by a debtor, who had been arrested, and being afterwards

* liberated, voluntarily returned to prison, was held good; [ * 448 ] because the imprisonment, as it respected him, was not unlawful, hé having consented to it.

The jury in the case at bar have not, by their verdict, settled the point of fraud which was committed to them; but if the plaintiff could now be relieved, the note having been returned, and the

(4) 11 Mass. Rep. 11.

LITTLE US. NEWBURYPORT BANK.

plaintiff having procured his enlargement for the purpose of settling the debt, the most gross injustice would be done; and the creditors would, in point of fact, be cheated out of their judgment. But we think the case free from all doubt; and judgment must therefore be rendered on the verdict.

THOMAS KITTREDGE versus THE INHABITANTS OF NEWBury.

Where a pauper had immediate need of a surgical operation, in a town in which he was not legally settled, and the same was performed by a surgeon not belonging to such town, without being requested by the overseers of the poor, the town was holden not liable; and the surgeon not having made a demand within three months, it was holden, that the town would not have been liable, if he had been an inhabitant of the town.

THIS was an action of assumpsit for surgical aid rendered to one Thomas Dennett, a poor person belonging to the town of Newburyport, but having need of immediate relief in Newbury.

Trial was had upon the general issue before Putnam, J., at the last April term at Ipswich; when it was in evidence that the said Dennett was a boy, who worked at a woollen manufactory in Newbury; and received an injury from the explosion of some gunpowder there, which rendered it necessary to amputate his leg immediately, and before there would have been an opportunity to apply to the overseers of the poor of Newbury for their directions; that the plaintiff performed the service at the request of the attending physician; and that the same was reasonably worth the sum demanded. It was also proved that the plaintiff gave notice of his claim to, and demanded payment of it from, the overseers of the [*449] poor of Newbury, within two years, but not within three months, after the service was rendered. But it was in evidence that one of the said overseers was informed of the situation of the said Dennett, and that he was in distress, and stood in need of immediate relief, within ten days after he was wounded. The said overseer, however, testified that he did not understand that any claim was then intended to be made against the town, or any application to him as an overseer, and that he gave no notice of the information he had received to the board of overseers.

*

The defendants contended, at the trial, that the plaintiff, not being an inhabitant of Newbury, but of another town, never had any right of action against them; that, if he had, he was bound to notify

KITTREDGE vs. THE INHABITANTS OF NEWBURY.

them within three months, that they might have notified and recovered of the town of Newburyport, where the pauper had his legal settlement; and that towns are not liable, even to individual inhabitants, until after notice.

The plaintiff gave no evidence of any express promise, but contended that the defendants were bound by law to afford immediate relief to persons in distress; and that the aid rendered by him in this case was under such circumstances as would raise a promise, by implication, on the part of the defendants to pay.

A verdict was taken for the defendants, which was to be set aside, and they were to be defaulted, if the whole Court should be of opinion that the plaintiff was entitled to recover upon the foregoing evidence; otherwise judgment was to be according to the verdict.

Cummings, for the plaintiff, argued that the defendants were bound by law to furnish the necessary aid and relief to this pauper, under the circumstances of the case; and the plaintiff having done the service, which they were under legal obligations to see performed, there was a sufficient consideration to support the action, although no request be shown to have been made by the defendants. (1) From the cases referred to, it will appear that the plaintiff

had a legal right of action * against the defendants, [*450 ] upon the performance of the service; and as to the

requisition of notice within three months, it has no application to a case like the present, but wholly relates to actions between towns. (2)

Moseley, for the defendants. The whole obligation on towns to support or relieve paupers is grounded on the provisions of our own statutes; and every person or corporation, claiming remuneration on such account, must bring their case within those statutes. The plaintiff, not being a citizen of Newbury, has no right of action against the defendants, the provision, in case of relief by an individual, being confined to inhabitants of the town. But even this provision has no operation until after notice and request made to the overseers. (3) That notice should be in season, if defendants were liable at all, for them to have their legal remedy over against the town of the pauper's settlement.

Per Curiam. Towns are under no moral obligation to pay for the support or cure of paupers; especially of such as have their

(1) 1 H. Black. 90, Jenkins vs. Tucker -8 D. & E. 308, Exall vs. Partridge 3 Esp. Rep. 89, Houlditch & Al. vs. Milne. — 3 B. & P. 253, Wennall vs. Adı (2) Stat. 1793, c. 59, § 9.

(3) 2 Mass Rep. 547, Cargill vs. Wiscasset. — Ibid. 567, Doggett vs. Dedham Mass. Rep. 333, Mitchell vs. Cornville.