Nealey v. Cilley

5 N.H. 26

• Court: Superior Court of New Hampshire
• Decided: August 15, 1829
• Status: Published

Opinion

By the court.

We have attentively considered this case, but without changing the opinion which we entertained at the time when the cause was tried.

The question is, whether it ought to have been submitted to the jury to infer from the memorandum on the back of the bond alone, that the plaintiff voluntarily discharged the defendant from imprisonment ?

The memorandum shows on the face of it nothing more than that the creditor was willing to discharge the sureties who executed the prison bond. It may perhaps afford some ground for the conjecture that the plaintiff intended to discharge the sureties in order that the defendant might be able to go at large without injury to them, and that there was no objection on the part of the plaintiff that he should go at large if it could be done without discharging the judgment. This is the utmost extent to which any reasonable conjecture can carry us. There is, then, no ground even to conjecture that the plaintiff’ intended to assent to the discharge of the defendant. It may be easily conceived that the plaintiff may have been willing and even desirous that the defendant should be at large and yet never have consented to his discharge. A regard to his interest may have restrained him from gratifying his wishes, and although willing to discharge the sureties, he may not have been willing to assent to the discharge of the prisoner.

If then the memorandum furnishes any evidence of such an assent on the part of the plaintiff, that evidence must result from the legal operation of the memorandum. If that writing had the effect to place the defendant absolutely and unconditionally at large, it may be evidence of an assent on the part of the plaintiff to the enlargement of the prisoner. For it may perhaps be reasonably presumed that the plaintiff knew the legal effect of the writing he signed.

The decision then in this case must depend upon the legal operation of the memorandum.

It is not necessary to consider in this case several questions which might have arisen, had the memorandum been under seal, — would a release of the sureties by deed have discharged the principal ? And if so, would that have had the effect to set the prisoner at large, or in any way to discharge the judgment ? These questions might have arisen, had the instrument been under seal, but cannot arise upon this memorandum. For it is well settled that when a duty is created by deed, it cannot be discharged by a release not under seal, and without consideration, because such a release is void. 1 Cowen, 122, Jackson v. Stackhouse; 2 Wilson, 376, Rogers v. Payne; Yelv. 192; Cro. James, 254, Neale v. Sheffield ; 6 Coke’s Rep. 44, Blake's case.

■ Even a parol promise cannot, after it is broken be discharge by a release not under seal. 13 Johns. 87, Crawford v. Millspough. Although a parol promise may be discharged before breach by parol. 3 Croke, 383, Langdon v. Stokes; 3 Lev. 237; 5 East, 230; 17 Johns. 169, Seymour v. Minturn.

This memorandum is not under seal, and there is no evidence of any consideration, and standing alone it must be considered as void, and without any operation, even to discharge the sureties- No evidence of an assent to discharge the prisoner, can be deduced then from its legal operation

We would not be understood to intimate that the memorandum may not be sufficient to protect the sureties, should there be an attempt to charge them- We go no farther now than to say that standing alone it cannot operate as a release of the obligation.

For these reasons we are of opinion that there must be

Judgment on the verdicti«v