Gould v. Gould

4 N.H. 173

• Court: Superior Court of New Hampshire
• Decided: October 15, 1827
• Status: Published

Opinion

Richardson, C. J.

The question which is raised in this case is, whether, when there is a joint execution against two and one is taken in execution and voluntarily discharged by the creditor, it is to be taken as a satisfaction of the debt with respect to the other debtor ?

There are cases in which one joint debtor may be discharged without discharging the other. Several cases of this description are cited in Townsend v. Riddle, 2 N. H. Rep. 449. Rut it will be found upon examination that in all those cases the discharge was effected by operation of law without the consent and without any art on the part of the creditor. And that circumstance distinguishes all those cases from the case which is now before us.

If a creditor assent that his debtor who is in execution be discharged, he cannot be again arrested, but the debt is discharged. 14 Mass. Rep. 443, Little v. N. P. Bank; 1 B. & P. 242, Da Costa v. Davis; 1 D. & E. 420, Tanner v. Hague; 1 D. & E. 557, Jaques v. Withy; 4 Burr. 2482, Vigers v. Aldrich; Yelv. 68, note; 3 East, 258; 1 Johns. 290. And if a creditor assent, that one of two joint debtors, who is in execution, be discharged, it is a satisfaction of the debt with respect to the other debtor. 6 D. & E. 525, Clark v. Clement.

This;⅜⅝⅜necessary consequence of the assent’s operating as a release of the debt with respect to the debtor discharged from the execution. For if the debt should not be also held to be discharged with respect to the other debtor, he might be compelled to pay it, and might then legally resort for contribution to the debtor who had been discharged from the execution and thus defeat the legal effect of the discharge.

Judgment on the verdict.