Sweet v. Palmer

16 Johns. 181

Opinion

Per Curiam.

The evidence clearly shows fraud, and a trick on the part of the defendants ; and we rejoice that the rules of law are such as to prevent the success of their cunning.

The certificate is certainly not binding as a technical release of the debt: and it is settled that, although a pre~ vious consent of the creditor, that the debtor may go off the liberties, will excuse the escape, and discharge the judgment ; yet, a subsequent assent, or agreement, that the debtor may remain off, is no discharge. The right of action for the escape having once accrued, nothing but a release or an agreement for valuable consideration can defeat the action» (Scott v. Peacock, 1 Salk. 271.)

Here the license was after the escape ; and there is no consideration. The fair construction of the certificate is this : “ you have escaped, and I have a right to sue for it 5 but I agree to waive that right, provided you return as a prisoner to the limits, by nine o’clock to-morrow morning.’’ The defendant never returned to the limits, nor was any consideration received by the plaintiff. Besides, if, as in this case, the debtor procured the license by collusion and preconcerted fraud, it would be affrontful to justice, to tolerate such a defence.

The plaintiff is, therefore, entitled to judgment.

Judgment for the plaintiff.