Hollingsworth Magniac, Daniel Smith Magniac, and William Jardine, Late Trading Under the Firm of Magniac Company, Appellants v. John Thomson

• Decision Date: 01 December 1853
• Citation: 14 L.Ed. 696,56 U.S. 281,15 How. 281
• Parties: HOLLINGSWORTH MAGNIAC, DANIEL SMITH MAGNIAC, AND WILLIAM JARDINE, LATE TRADING UNDER THE FIRM OF MAGNIAC & COMPANY, APPELLANTS, v. JOHN R. THOMSON
• Court: U.S. Supreme Court

56 U.S. 281

15 How. 281

14 L.Ed. 696

HOLLINGSWORTH MAGNIAC, DANIEL SMITH MAGNIAC, AND WILLIAM

JARDINE, LATE TRADING UNDER THE FIRM OF MAGNIAC &

COMPANY, APPELLANTS,

v. JOHN R. THOMSON.

December Term, 1853

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania, sitting as a court of equity.

Magniac & Company, being English subjects, had two judgments against Thomson, one in the Circuit Court of the United States for Pennsylvania, in 1827, and the other in the Circuit Court for New Jersey, in 1829.

On the 1st April, 1829, the appellants sued out a writ of capias ad satisfaciendum on the judgment in the Circuit Court of the United States for the Eastern District of Pennsylvania to April session, 1829, to which the marshal, on the 8th April, 1830, returned non est inventus, and on the same day an alias capias ad satisfaciendum was sued out to April session, 1830, Number 9, to which on the 12th April, 1830, the marshal made return of 'C. C. and enlarged by agreement of plaintiff's attorney.'

The appellee was discharged out of custody by the consent of the plaintiffs in the judgment, under the following agreement, viz.

Magniac v. Thomson. No. 18, Circuit Court of the United States, Pennsylvania District, October, 1826.

Defendant having been taken by ca. sa. in this suit, at his instance it is agreed that he be set at liberty on giving security to abide the event of an issue to be formed for ascertaining, by judicial decision, whether he has the means, by the property in his marriage settlement or otherwise, of satisfying the judgment, which issue is to be formed by plaintiff's affirmance and defendant's denial of such means; both parties hereby consenting to try such issue at the ensuing session of the Circuit Court of the United States for this district, on the merits, without regard to form or to the time when the jury may be summoned; it being expressly acknowledged by defendant that this agreement is made for his accommodation, without any prejudice whatever to arise to the plaintiff's rights by the defendant's enlargement on security as aforesaid or otherwise howsoever.

April 8th, 1830.

JOHN R. THOMSON.

I hereby become answerable for the performance of the terms above stated, which I guarantee.

R. F. STOCKTON.

Witness, J. P. Norris, Jr.

On the part of the plaintiffs in this case, I hereby consent to the defendant's enlargement on the terms stated in his within proposition and agreement of this date.

9th April, 1830.

C. J. INGERSOLL, Attorney.

In pursuance of this agreement, a new suit was entered by agreement on the 3d June, 1830, in the Circuit Court of the United States for the Eastern District of Pennsylvania, in the third circuit, by these appellants against the appellee, to try the issue to be formed under the above agreement of the 9th April, 1830.

The case was tried and is reported in Baldwin's Reports, 344. It resulted in a verdict for the defendant. Being brought to this court upon a bill of exceptions, the judgment of the Circuit Court was affirmed, as reported in 7 Peters, 348.

The death of Mr. Thomson's wife being supposed to place at his disposal certain property which might be properly applied to the payment of the judgment, Magniac & Co. applied for a rule to show cause why a scire facias should not issue to revive the judgment. Thomson set up his arrest and discharge under the ca. sa. as a legal satisfaction of the judgment. Magniac & Co. then withdrew the rule and filed the present bill.

The substance of the bill is very fully stated in the opinion of the court, and need not be repeated. The bill was demurred to, and, upon argument, the Circuit Court sustained the demurrer and dismissed the bill.

The complainants appealed to this court.

The cause was argued here by Mr. E. Ingersoll and Mr. C. Ingersoll, for the appellants, and by Mr. John M. Read and Mr. Cadwallader, for the appellee.

Only such of the points will be mentioned as are involved in the opinion of the court.

Appellants' Points.

Construction of the Agreement of 8th of April, 1830. If the meaning of this paper were less than is insisted by the plaintiff, its last sentence, beginning 'it being expressly acknowledged,' would have been omitted altogether. That sentence is not merely without purpose or sense, but is directly in the teeth of the meaning of the parties to the contract, if not intended to bind the defendant by a promise to stand by the judgment after the discharge as much as before. The words 'or otherwise howsoever,' which the defendant supposes we rely upon, may be rejected without injury to the plaintiffs. Such general words, in the case of extremely formal papers, in which the meaning of the parties is expressed at great length, might perhaps have little force, but in a brief stipulation, such as this, drawn up in haste, probably, and in order to an immediate and pressing object, they ought to have their full force and popular construction. They should be interpreted to signify that if by the words which precede them the plaintiff's interests under the judgment are not fully guarded, the defendant shall give them protection 'otherwise howsoever.' They amount to a covenant for further assurance.

The agreement, interpreted in any other way, leads to this absurd conclusion, namely, that the plaintiff perilled his whole debt without a motive, while the defendant obtained his enlargement from custody, giving no equivalent therefor.

If the plaintiff had refused all arrangement, and simply permitted the defendant to remain in custody, he would have resorted to the insolvent law of Pennsylvania, or of the United States. In the former case he must have given fuller security than he gave under the agreement of 8th of April, 1830, and there would have been a trial of the question whether the defendant was possessed of property, more advantageous to the plaintiff than the trial in the federal court. In the latter case, of an application by the defendant under the United States insolvent law of 1800, the plaintiff, had he succeeded in breaking the trust, would have got the whole trust property, and, whether he failed or succeeded, would have had security of the most binding sort in the custody of the defendant's person. The plaintiff therefore gained nothing by the agreement, for it is not pretended, on the other side, that he got any thing by it if he did not get security of a superior character for his debt, or a better trial of the question upon which it turned. He simply, as expressed by the agreement, set the defendant at liberty at the defendant's instance. He did an act of kindness, upon the defendant's agreement that it should be without prejudice.

The defendant, on the other hand, acquired, first, his immediate liberty, which he could get only by agreement, and, second, a trial of the question of property in the federal court; a better trial for him than one in the Common Pleas, and much better than under the insolvent law of 1800, because that would have detained him in custody during the time the cause was pending, which was about three years.

It is submitted, that to give any other interpretation to the agreement would be to stultify the plaintiff, who dealt with the defendant liberally enough, but did not go the length of giving away his debt.

The question whether, under this agreement, the plaintiff was entitled to a second ca. sa., is one which is without difficulty, the fact once established that the defendant has evaded by fraud, or violated the agreement; for Baker v. Ridgway, (2 Bing. 41,) and other cases, are precedents for a second ca. sa., when the plaintiff has been fraudulently induced to discharge from the first.

In Baker v. Ridgway, a commission of bankruptcy having been sued out against a defendant in custody, under a ca. sa., the plaintiff, in order to prove his debt, discharged defendant from the execution. The commission having afterwards been superseded, plaintiff took defendant in execution again. Defendant moved for his discharge, but the plaintiff alleging that the commission had been fraudulently procured to induce him to discharge the defendant from the original ca. sa., the court refused the motion, referring it to a jury to try the question of fraud holding that if there were fraud in defendant's procurement of discharge from the first ca. sa., the second was well issued.

Best, C. J., says: 'If there has been no fraud in the transaction, I am of opinion the defendant is entitled to his discharge; if there has been fraud, we are all of opinion he is not so entitled. I have looked through all the cases on execution against the person, from the earliest period down to the present time, and I am aware of the great jealousy of the law on the subject of personal restraint. I am aware that where a party had been discharged on account of privilege of parliament, it was doubted whether he could be retaken after that privilege expired, and the interference of the legislature became necessary to sanction such a proceeding; so, when he died in confinement, it was doubted whether the creditor, having resorted to the highest remedy the law afforded, could have any further means for the recovery of his debt, though the debtor left property behind him: that doubt was also set at rest by the authority of the legislature. I am therefore clear, that where a commission of bankrupt is sued out against a party in execution, he not being privy thereto, if the plaintiff abandons his execution and proceeds against the effects of the party, by proving his debt under the commission, he has taken his chance, and though there should be no assets forthcoming, the defendant is secure in his discharge. (However, I consider myself no more bound by an opinion delivered in the present summary mode of treating the question than I should be by an opinion delivered at nisi prius;) but if the debtor, in concert with others, procures a...