UNITED STATES v. THOMPSON, 28 F. Cas. 92

HOPKINSON, District Judge (charging jury). This is a very singular case in some of its aspects, and it is difficult to find any principle which will carry us through every part of it. I hope, however, that we shall be able to come at its substantial justice consistently with the rules of law. We shall make the attempt truly and faithfully, and if we shall fall into any errors, they may be corrected on a future and more deliberate revision by this or another court. There are eight suits and issues on trial before- you.

You will take them all into your consideration, and give verdicts upon them separately, as the evidence and law applied to each case shall warrant. The cause arises from certain writs of scire facias, issued by the United States, to revive certain judgments obtained by them in this court against defendant. The original suits in which these judgments were obtained, were brought on certain bonds given to the United States by the defendants, Samuel Thompson and Jonah Thompson, for duties on imported goods. They were joint and several bonds.

Against the demand of the United States, now on trial, the defendant can avail himself only of such matters of defence as have occurred since the judgments were rendered against him. As to any defence in his knowledge antecedent to the judgments, it was his duty to have -pleaded it before the judgment was entered. The defence now set up is within this limitation. It is two fold: 1. He claims an entire discharge from the whole demand or debt. 2. He claims certain credits or payments. On the 13th December, 1832, the secretary of the treasury, by virtue of

an act of congress passed on the 2d March. 1831. executed a release to Jonah Thompson, on certain terms and conditions. This release is of the debt due by Jonah Thompson to the United States. On the 5th January. 1833. Jonah Thompson conveyed to the United States certain lands in the state of New Jersey, which conveyance was one of the conditions precedent to the operation of the release. On the 24th January, 1833, there was a certificate that the conveyance was made.

All these proceedings were subsequent to the date of the judgments, now under consideration on the plea of payment by the defendant, and of course, he has a right to the benefit of them to maintain his plea, so far as they will avail him for that purpose. It is on these acts and proceedings that he founds the two points of his defence, to wit: 1. That the release of Jonah Thompson operates as a release to him, Samuel Thompson. 2. That he, the present defendant, has a right to a credit against these judgments, for the property conveyed by Jonah Thompson, to the United States.

The amount of this credit, and at what price or value the land should be charged to the United States, are a secondary inquiry. I. On the. first point, that is, the effect of the release, I am of opinion, that when two persons are bound jointly, or jointly and severally, in an obligation, the release of one of them, will discharge the other. Such is the principle of the law. But how does it apply to this case?

If the bonds, which were the original evidence of debt, the ground and cause of action in the first suits, and which were joint and several obligations, were now on trial against one or both of the obligors, and a release could be shown of either of them, it would acquit the other.

The cause of action would be the bonds; they would be an essential, indispensable part of the evidence of the plaintiff’s case; they would be produced here and we should judicially know that they were joint and several obligations, and that the recovery of the money due by them, was the object of the suit; of course any matter of defence which took away the right of recovery, would have its full effect. But such is not the case we have to try and decide. This suit is not on a bond of any description. We do not know what the bond was, or that any bond constituted the evidence of debt between these parties.

We are referred to our own records for the cause of action in this suit; we find that it is a judgment duly rendered and recorded in favour of the present plaintiff, against the present defendant. In this judgment the original cause of action and the defences which the defendant may have against it, are merged and lost. The counsel for the defendant has told you that we cannot look behind it. The judgment has become the debt, and the release of a debt, which was subsequent to the judgment, has no relation back to the antecedent contract or cause of action. It existed no Ion-ger.

Then the question presents itself, how is the release of a judgment, or a debt of any kind due from Jonah Thompson individually, to be applied to a debt or judgment due from Samuel Thompson?

I am of opinion, that on the trial of a scire facias to revive a joint judgment against two or more defendants, a release given to one of them, subsequent to the judgment, will be a sufficient defence and discharge of the others; but that if the judgment on which the scire facias issued, be not against all the parties to the original joint and several obligation, but against one of them only, then he cannot, on the trial of the scire facias, avail himself of a release given to his co-obligors in the original contract, subsequent to the judgment.

We can look only to the judgment as the plaintiff’s cause of action; we find that judgment standing against the defendant alone, and we cannot know that it was rendered on a joint and several bond, or on any other obligation than that of the defendant himself. If I were to allow myself to look beyond the judgment to the proceedings which led to it, I should find, even there, nothing to inform me that the suit was brought and the judgment given on a bond executed by this defendant and another, as co-obligors.

The declaration sets out no such matter; it recites simply a bond executed by Samuel Thompson to the United States, for a certain sum; and the judgment has affirmed that Samuel Thompson, and no other person,, is indebted to the United States by virtue of that bond.

The district attorney has argued, that whatever may be the effect of the release of one of two joint obligors, in a contract in an ordinary case between man and man, yet that this rule or principle cannot ■ be applied to this case; that this is a special proceeding under the provisions of'an act of congress; that this release has been executed by the secretary of the treasury, by the authority and under the directions of that act; that its extent and operation must be governed by the act; that it is clear that the act contemplated and intended only the discharge of the petitioning debtor, who- offers to perform and does perform the conditions imposed upon him by the law, as the price of his liberation; that all these are personal in their nature and effect, and were never meant to be extended beyond the petitioning debtor, and to give another debtor the whole benefit of the law, who does not comply with any one of the conditions-required by it, nor even ask for it.

I do not deny, that there is force in this argument; certainly it is very plausible. It does not, however, at present appear to me to be sufficiently clear and conclusive to overthrow a settled principle of the law, or to show that this is an exception from it. It may be worthy of a future consideration. I .will briefly state the reasons of the opinion I now entertain of it.

The act of congress enacts, that an insolvent debtor of the United States may make application to the secretary of the treasury “for the purpose of obtaining a release or discharge from the said debt.” The secretary, after receiving the report of the commissioners of the circumstances of the case, and being satisfied that the petitioner has complied with the conditions of the act, is authorised to compromise with the debtor upon such terms as he shall think reasonable, and thereupon he “may execute a release to him for the amount of the said debt.” The same term, release, is repeated several times in the law, without any limitation or explanation of its meaning.

By this authority the secretary, on the petition of Jonah Thompson, did execute a release to him, in which he says: “I do decide to release him, the said Jonah Thompson, from the said debt.” We have then

an act of congress, and a treasury act, which, we must presume, was drawn with great care, either by the law officer of the government, or under his supervision. In this act a term is used which, in the courts of law, has a fixed and definite meaning. It is strictly technical, with a settled and determinate construction. Can I then say that congress, in using the term “release,” did not intend to give it the same meaning and effect, . with all its legal consequences, which have always been given to it? Could it have been expected that the courts of law, finding this term in

an act of congress, without any restriction or qualification, would not understand it to have the same meaning, the same force and effect, there as in any other written instrument in which it might be employed? When the secretary says he releases the debt- or, why is not his release to have the same operation as any other release, by any other person?

If any thing else was intended, it would have been declared and specified, as is done in the insolvent laws of Pennsylvania, which, from .that of 1729 down to the latest, have contained an express provision “that the discharge of the debtor by virtue of the act. shall not acquit any other person from any debt,” but that “all other persons shall be answerable for the same, in the same manner as before the passing of the act.” With these views of the question, I must consider the release of the secretary of the treasury to have the same effect and legal consequences with a similar instrument made and executed by any other person.

As regards the law of this case, for which you will look to the court for instruction, while I cannot say that it is clear of difficulty, you will, in your deliberations, take it to be: 1. That a release given to a debtor of the United States, by the secretary of the treasury under the provisions of the act of March, 1831. is of the same effect and subject to the same legal consequences, as an ordinary release from a creditor to a debtor. 2.

That when a suit or trial is- founded on a judgment rendered against the defendant, we may not inquire whether that judgment was given on an obligation or contract made by the defendant with another person; and that, if we might make the inquiry, we eould not go out of the record of the action in which the judgment was given, and seek for the information in the evidence, to wit, the obligation or contract on which it was obtained.

This, in fact, would be to try the original cause again, and to revise the judgment given in it The application of the law to the eases before you brings you to this result: That as to the five cases in which the original judgments were rendered against Samuel Thompson and Jonah Thompson, the release of Jonah discharges also Samuel; and in those cases your verdict ought to be for the defendant.

That as to the other three cases, in which the judgments were rendered against Samuel alone, and in which Jonah does not appear by the record to have been a party, your verdict should be for the United States, for so much as shall be due upon a consideration of the other matters of defence in proof before you. The jury found verdicts for the United States in the cases arising under the three original judgments rendered against Samuel Thompson alone, and in favour of the defendant in the five remaining cases. II. The credits claimed consist of alleged payments: 1.

In money, the sum of five hundred and forty-eight dollars and ninety-five cents, which is admitted and allowed. 2. The lands in New Jersey conveyed by Jonah Thompson to the United States. A credit for this property is not denied, but the question is about the amount. This is for you to decide, taking the rule of law for your guide. The defendant asserts that he is to be allowed a credit to the amount which Jonah Thompson paid for the land.

On the other side it is contended, that the value of the property at the time it was transferred by Jonah, as a payment, pro tanto, of his debt to the United States, is the full amount of the credit that should be allowed for it. I have no difficulty in adopting the latter rule; even if the lands at the time of their transfer to the United States had been in the same situation as when they were purchased by Jonah Thompson. Until the transfer, the United States had no interest in them, and then their interest was to the amount of the value of the property and no more.

The fluctuation in the prices of real estate is immense and every purchaser takes it at its value at the time of his purchase. This transfer of land is pleaded as a payment. Was it a payment for what it cost six years before, or for what it is actually worth to the creditor who takes it as a payment? How much of his debt will it pay? But the case is infinitely stronger here. By an accident, by the violence of the elements, after the purchase by Jonah Thompson, and long before his conveyance to the United States, the value of the land is changed, is almost wholly destroyed and lost.

Is it then to be charged to a creditor, who takes it for a debt, at the value it held antecedent to this destruction? A piece of land of little value may have upon it mills or factories erected at a monstrous expense, and its price would be accordingly. They are destroyed by flood or fire, and afterwards the land is assigned to a creditor, can it be imagined that he should be charged with it at its value before this loss. So the embankment of this meadow constituted its value; the banks are swept away and the value proportionably reduced.

It seems to be needless to illustrate a proposition so clear; and I should have left it to you without a word if it had not been so earnestly pressed upon by the counsel of the defendant. It has been further insisted, that if you should not take the value at the time of Jonah Thompson’s purchase, you should at least go back as far as his insolvency, when the United States acquired a right in the property. In the first place, this insolvency was subsequent to the destruction of the banks of this meadow.

But if it were not so, the insolvency of Jonah Thompson did not pass the property of this land to the United States; it gave no title to it; they could not sell it or take possession of it, or exercise any act of ownership over it. His insolvency gave them a preference over his other creditors, to be paid from the proceeds of his property, but no specific right or title to the property. The defendant should be allowed a credit for the value of these lands, at the time of their conveyance to the United States, of which you will judge from the evidence you have heard.

The. five judgments affected by the release will be put out of the case; and against the three remaining judgments you will allow a credit for the five hundred and forty-eight dollars and ninety-five cents, and the value of the lands at the time of their transfer to the United States.