
    James Brackett, Jun., versus John Winslow and Another.
    One of two judgment debtors paid the sum due, but instead of the execution being returned satisfied, it was, with the assent of the creditors, returned unsatisfied, and an alias execution was taken out, upon which the other judgment debtor was committed, with the view to compel him to contribute his share of the debt for the relief of him who had made the payment. Upon audita querela, it was held that the alias issued improvidently, and that the imprisonment under it was unlawful.
    This was an action of audita querela, to be relieved and discharged from an execution, which issued on the 3d of March, 18)9, in favor of the defendants, against the plaintiff and one John Peters. Trial was had on the general issue, before Jackson, J., and the following facts were proved or admitted.
    The present defendants, at the November term of this Court, in 1818, recovered judgment against the plaintiff and the said Peters for 727 dollars, 85 cents, damages, and 22 dollars costs. The original execution, which was issued thereon, was delivered to one Luke Baldwin, a deputy sheriff for this county. The plaintiff lived in the county of Norfolk, and Peters in Suffolk. When the return day of this execution had nearly arrived, viz., in the latter part of February, 1819, Peters was desirous to prevent or delay the service of it, and endeavored to make some arrangement for that purpose with the attorney of the creditors; and particularly [ * 154 ] wished that some measures might be * taken to enforce the payment of one half it by Brackett, who, as he said, ought to pay so much of it. The attorney refused to agree to any delay, alleging his instructions from the creditors to have the execution satisfied by the return day. He and Peters then went together to the office of Baldwin, where it was finally proposed that he should become responsible to pay the amount due on the execution by the 20th of March, 1819, taking security from Peters to his satisfaction for the amount thereof; and that this original execution should be returned, and an alias taken out, which Peters might use, to enforce payment from Brackett. The attorney refused to agree that Baldwin should return the execution unsatisfied, and told Baldwin that he should not exonerate him for neglecting to serve it; but that if he paid the money to the attorney by the said 20th of March, he would accept it; otherwise he should sue him for not serving the execution upon Peters. Baldwin agreeing to pay the money on that day, accordingly the attorney consented that Peters might use the alias execution as he should think proper against Brackett. The attorney also agreed to allow or pay to Baldwin about twenty dollars, upon his performance of this agreement.
    After this arrangement was made, the original execution was returned unsatisfied, and an alias taken out on the 3d of March, 1819. This was delivered to Peters, who handed it to a deputy sheriff of Norfolk, with directions to commit Brackett upon it, if he did not pay the money. He was accordingly committed to the jail in Norfolk, on the 11th of March, where he remained until he was liberated upon giving bail in this suit according to the statute of 1780, c. 47.
    On the 22d of March, Baldwin paid to the creditors’ attorney the whole amount due on the execution, having previously received the same from Peters ; and thereupon the attorney gave Baldwin a receipt for the money. This receipt was not produced at the trial, and its precise tenor was not proved, it having been delivered over to Peters by * Baldwin as soon as he received [ * 155 ] it. On the same day the creditors’ attorney paid the money over to the creditors, the present defendants, together with other moneys which he had received for them, and took their receipt of that date and of the following tenor,—“ Received of Z. G. Whitman the following sums of money, collected by him for the late firm of Winslow &f Alger, viz., the sum of seven hundred and twenty-six dollars, and eighty-five cents, collected of J. Brackett &f J. Peters,” and specifying three other sums collected of other per sons; “ the said Whitman having collected the above as attorney to said Winslow &f Alger: Received by me for said Winslow &/• Alger,” and signed John Winslow.
    
    The said attorney testified that it was the intention of all the parties in this transaction not to discharge the execution nor the judgment on which it issued, but to leave the business in such a state, that the alias might be lawfully served on Brackett, and to put it into the hands of Peters, to be used by him in any lawful manner, as he should think fit; that the present defendants assented to this, and the alias was accordingly delivered to Peters, as above mentioned; but that he took a receipt from the defendants in the form above written, instead of a receipt for so much to be accounted for, in order to prevent the necessity of any further account or settlement, on this subject, between himself and his said clients.
    On the 31st of the same March, Brackett paid to the jailer the amount of poundage and other fees on the execution, the receipt of which was endorsed by the jailer on the copy of the execution in his hands. Brackett, after he was committed, and before the writ of habeas corpus hereafter mentioned was sued out, caused notice to be given to the defendants of his intention to take the oath for his discharge as a poor debtor; whereupon Winslow consulted with his said attorney, and was told by him, that if any opposition was made to that discharge, Peters ought to pay the expense of it. Brackett also, after the said 31st of [ *.156 J *March, caused a tender to be made in his behalf to the defendants and to their said attorney, of the sum of fifteen dollars, to pay the costs, if any, incurred by them on the said alias, and demanded of them an order on the jailer, or other proper authority, for his discharge, which they refused.
    He then sued out a writ of habeas corpus, to obtain his discharge; nut the Court declined to investigate and ascertain the facts in that summary manner; as he had an adequate remedy, if injured, by this process of audita querela, in which any facts in dispute might be settled by a jury. The plaintiff, therefore, sued out this writ on the 13th of April, 1819, and was discharged from his imprisonment on giving bail, as before mentioned.
    The defendants contended at the trial, that. the transactions on the 22d of March, with the subsequent proceedings, did not amount to a payment of the debt, or a discharge of the execution, on which the plaintiff was committed; and that, if they did, the plaintiff might have departed from the jail, without any legal process; and that he could not, therefore, maintain this suit.
    The judge was inclined to a different opinion on both these points, and thereupon it was agreed that the defendants should be defaulted, and if the Court should be of opinion that the plaintiff was entitled to prevail, the default was to stand, and judgment to be entered accordingly; with such damages as should be assessed by an assessor, to be appointed by the Court, or agreed on by the parties. If the Court should be of a different opinion, the default was to be set aside, and the plaintiff to become nonsuit.
    
      B. Whitman, for the defendants.
    Neither the execution nor the judgment was satisfied by the payment of the money by Peters. The money was paid with a particular understanding of all the parties to the transaction that it was to have no such effect. It was for this reason that a separate receipt was given, instead of the usual method of endorsing it upon the execution. If the plaintiff had afterwards * paid his moiety of the judgment, as fin [ * 157 ] all justice he should have done, that money was to be paid over to Peters. It will be a singular construction of a transaction, if that should be held a payment and discharge of a judgment, which neither the person paying, nor the person receiving, understood or intended should have that effect. This process lies, according to all the authorities, only when the execution was issued illegally. That .was not the case here The execution was issued lawfully, and the plaintiff was lawfully imprisoned upon it.
    But if this be otherwise, and the Court shall be of opinion that the execution was void, as having issued after satisfaction of the judgment, still it is believed that the plaintiff, in that case being unlawfully restrained, had a right at any moment to leave the prison, and free himself from all confinement, as he was under no physical restraint, having the liberty of the prison-yard. Having his liberty then in his own power, it was his folly not to use it. It was trifling with this extraordinary process of the Court, to sue it under such circumstances, and the action ought now to be dismissed.
    
      S. D. Parker, for the plaintiff,
    relied on the case of Hammatt vs. Wyman & Al. 
       as directly in point, to show the plaintiff to have been unlawfully imprisoned. The judgment was completely satisfied, as it respected the creditors, by the payment of Peters to the officer. The remedy of the creditors was after that upon the officer. Peters could never have been arrested on the alias execution, having made satisfaction and having been permitted to go at large. After the creditors had received satisfaction, they had no right to sue another execution. It was a gross misuser of the process of the Court, for which they might well be proceeded against, as for a contempt.
    It is true the plaintiff might have escaped from the custody of the jailer, and broken over the limits. But in doing this he would have exposed his sureties to the vexation and uncertainty of a suit at law. Instead of so doing, * he has applied [ * 158 ] to the authority and justice of this Court, by a process adapted to his case, and upon which right can be administered to all parties .
    
      
       9 Mass. Rep. 138.
    
    
      
      
        Bac. Jlbr. Title Aud. Quer. C.—2 Leon. 260.—10 Mass. Rep. 103, Lovejoy va Webber.
      
    
   Parker C. J.,

delivered the opinion of the Court.

Whether the default in this action was rightly entered or not, depends upon the question, whether the judgment upon which the execution issued, whereby the plaintiff was committed, was satisfied before the institution of this suit; for if it was, the execution must have lost its power, having no judgment to rest upon. We think it immaterial whether payment was made before or after the issuing of the alias execution. If before, the execution issued improvidently or fraudulently, and would be therefore void ; if after, its virtue was gone, and the plaintiff could not lawfully be held in prison under it.

It is objected that if the plaintiff was not lawfully held, this process does not lie, because he might go at large, or have an action of false imprisonment if detained. But it is no answer to the suit, to say that the plaintiff had another remedy, as was settled in the case of Lovejoy vs. Webber, cited in the argument. Nor can it be allowed the defendants to set up the unlawfulness of their own acts, in defence of the plaintiff’s complaint in the present suit.

Our statute, which provides the form of the writ of audita querela, refers to the common law for the principles by which the suit is to be governed; and by the common law, the writ lies although another remedy may exist . If a man be taken in execution, after the judgment shall have been satisfied, audita querela is a proper remedy, although trespass might lie against the creditor: so if, after being committed, he shall pay the judgment, and still be detained by order of the creditor. In these cases, the aggrieved party might be relieved by habeas corpus from his imprisonment. But facts may be in dispute, which it is proper a jury should try; and therefore this process is more suitable r * 159 j than a habeas corpus. Moreover, * in this suit, by our statute, the party may recover damages for his imprisonment, and thus in one suit obtain his liberty, and his damages for the violation of it, instead of being obliged to resort to his action of trespass, after the proceedings upon the habeas corpus shall have peen determined.

There is no objection, then, to this process, provided .the facts upon which it is founded, viz., payment and satisfaction of the judgment were sufficiently made out at the trial. The facts stated in the judge’s report must be taken to be true, as the defendants submitted to a default.

It appears, then, that the plaintiff was committed on the 11th of March, 1819, upon an alias execution which issued upon a judgment recovered at the preceding November term of this Court, against him and one John Peters jointly ; that the first execution, which was returnable on the first Tuesday of March, was returned unsatisfied, without the express consent, but with the knowledge and acquiescence of the present defendants, who were the judgment creditors; they having taken the personal responsibility of the officer who had the execution for the amount of the debt and costs, to be paid by him on the 20th of March. At the time of the commitment of the plaintiff, the defendants had in truth no further interest in the execution, relying altogether upon the contract of the officer. The attorney testifies that it was not the intent of the parties to discharge the judgment, but that the same should remain unsatisfied, in order that Peters, out of whose funds the officer was to comply with his contract, might by an alias execution coerce payment of one half the debt from the plaintiff. This could not lawfully be done. The judgment was virtually satisfied; and it may be doubted, whether the judgment creditors could afterwards have resorted to their execution, if the officer had failed to pay.

But without determining this point, it is sufficient, to maintain this suit, that while the plaintiff remained in prison, the debt was paid by the officer, with the funds of * Peters, [ * 160 ] one of the judgment debtors. This must be considered as payment, notwithstanding the contrivance for the benefit of Peters. If an action had been brought upon the judgment, it could have been defeated by this evidence, on the plea of payment. Authorities need not be cited to show that a payment by one joint debtor discharges both. An obligation is thereby raised against the other to pay his proportion ; but the suit would be an equitable one, and the defendant would be let in to show that he had paid, or that he ought not to pay, according to the equitable circumstances in the case.

To allow the debtor, who pays, to avail himself of the execution, would be to give him an undue advantage, and enable him to exact the whole debt, or to prevent such equitable set-offs as his companion might have against him. The case of Hammatt vs. Wyman & Al., cited in the argument, is decisive of this point. The facts in that case cannot be distinguished, so far as they affect the principle, from those which occurred in the case at bar.

The creditors in truth received satisfaction of their judgment; and the intention proved was only to set off an appearance against the reality, for the purpose of enabling the debtor, who had paid the money, to do what the law would not authorize him to do Judgment must therefore be entered for the plaintiff. 
      
      
        Slat. 1780, c. 47.—1 Roll. 304, l. 25, 305, l. 20, 22 —Jones, 90. -Strange, 1108
     