Simonton v. Barrell

21 Wend. 362

• Court: New York Supreme Court
• Decided: July 15, 1839
• Status: Published

Opinion

By the Court,

Cowen, J.

There is no doubt that, at common law, the judgment would have been extinguished by the consent of the plaintiff, on whatever terms, to discharge the defendant from this arrest. But it is equally well settled that the attorney for the plaintiff* has no power to allow a discharge in virtue of his general authority, without the actual payment of the money. Kellogg v. Gilbert, 10 Johns. R. 220. In the case before us, so far from any special authority in the attorney being shown, the record shows affirmatively that he had none; and that part of the record too was given in evidence by the defendant below.

But take it that the plaintiff himself had signed the stipnlotion for a discharge, there can be no doubt that this action, was maintainable within the statute of Maryland. - The argument against .that is founded tin the words of the act which, indeed, expressly gives the plaintiff a remedy only by farther execution or other process, which latter word may in strictness be confined to a scire facias. It is enough, to say the statute is remedial, and that its equity, therefore, extends to an action of debt also.. It has been held that a statute giving a remedy ¿gainst executors extends to administrators, because both are in pari ratione. A defendant leaving the jurisdiction of a state wherein judgment is obtained against him, on action of debt, the only remedy remaining is equally within the reason which gives ah execution or a sci'. fa. at the hands of a domestic tribunal. It would be an outrage upon the. intent of the legislature, to say that the defendant could evade the act by stepping over the line. at which the laws of Maryland cease to operate. The act. gives no' remedy to the executors, or administrators of the plaintiff. ' Suppose he had died; would all remedy have died with him 1 Such would be the effect of the strict- \ ness contended for. Numerous cases are collected in Dwarris on Statutes, 718, 721, wherein remedial acts have been extended to cases and persons not within the words; and many decisions noticed there, will- be found to have carried the equity beyond the words in cases much less plainly within the general meaning. A provision against fraudulent feoffments was extended to fraudulent grants, fines, recoveries," and all other conveyances. A statute giving a writ of entry ih casu proviso, was held extended by equity to a writ of entry in consimili casu. A statute gave remedy to a reversioner ; by equity it" was held the same remedy in a like case should be extended to a remainderman; and an act forbidding the warden of the fleet to let prisoners in execution go out- of the prison was extended, to all other jailers-in the kingdom. The statute which gave to executors an action of trespass de bonis asportatis in vita testatoris, is a familiar instance. It has been extended by equity to every injury which, during his .life, tended to subtract from the personal estate of the testator; even to an action against a sheriff for a false return, or removing goods after notice of rent due. 1 Williams’ Ex. 511, 512, Philad. ed. 1832. It would be strange, after all this, if courts could feel themselves so fettered by words, as to say that a statute which gives a remedy by scire facias, would not extend to an action of debt. There is scarcely a difference even in form between the two; and none whatever in the substantial object. But allowing a new execution, is clearly enough to lay the foundation of a similar construction. The judgment must be affirmed.

Judgment affirmed.