
    * Jacob Little, Plaintiff in Audita Querela, versus The President, Directors, and Company, of the Newburyport Bank.
    [f a prisoner on execution procure his liberation, under an agreement to surrender himself upon certain terms, and he executes such agreement, and is committed again on the execution, he can have no remedy by process of audita querela.
    
    This suit was brought by the plaintiff, to obtain relief from imprisonment upon an execution, which issued upon a judgment obtained by the defendants against the plaintiff in this Court, N ovem ber term, 1814, for 5723 dollars 15 cents debt, and 29 dollars 8 cents costs; upon which execution the plaintiff was arrested on the 4th of March, 1815, the execution being returnable to this Court at the succeeding April term.
    The plaintiff avers that the defendants, after the arrest on the same 4th of March, discharged him, and consented that he should go at large; and afterwards, on the 11th of the same month of March, caused him to be arrested and imprisoned again on the same execution.
    At the trial, which was had on the general issue, before Putnam, J., at the sittings here after November term, 1815, it was in evidence that, on the 4th of March, 1815, the plaintiff, (being then in prison on the said execution,) and the directors of the bank, and Moses S. Little, son of the plaintiff, and David Little, brother of the plaintiff, met at the prison in Newburyport; that the plaintiff wanted time, to make arrangements for the settlement of the execution; and it was finally agreed that the defendants should give the plaintiff one week, on condition that the said David and Moses S. would sign a note, with the plaintiff as principal, for the amount of the execution, payable to the defendants in one week ; which note was to be given up, if the plaintiff should be forthcoming in one week ; in which case the execution was to be in force against him in the same manner that it originally was; but otherwise the note was to be in force.
    The said note was accordingly made and signed as aforesaid, and put ■ into the hands of If. Bartlett, Esq., * the president of the bank, to be delivered up on the terms aforesaid; and the plaintiff was thereupon, by the consent of the defendants, permitted to go at large, upon the agreement aforesaid.
    The sureties gave notice to the defendants, within the week, that they should deliver up the plaintiff; and on the 11th of March, the sureties and the parties met at the prison. The plaintiff produced testimony tending to prove that the sureties delivered him up ; and the defendants produced evidence to prove that the plaintiff voluntarily surrendered himself. He was, in fact, recommitted on the execution, by .direction of the defendants, and detained in prison from the said 11th of March to the 25th of April following. There was some evidence in the case tending to prove that the plaintiff procured his said discharge from imprisonment on the 4th oi March by fraud.
    All the evidence was submitted tó the jury, with instructions from the judge to the following effect: That the general rule of law is that, when a debtor has been once arrested on execution, and after-wards, by the consent of the creditor, is permitted to go at large, he cannot be again arrested on the same execution; that this rule is subject to some limitations; as where the discharge was procured by the fraud of the debtor ; and if the jury, from the' evidence, believed that the discharge in this case had been so procured, they should find a verdict for the defendants.
    So, if the discharge was procured by the debtor, for his accommodation, under an agreement to surrender himself upon terms, which agreement the debtor should execute and carry into effect, he would not be entitled to any redress for such imprisonment: and the jury were instructed to inquire whether the plaintiff did voluntarily surrender himself, pursuant to the agreement aforesaid ; and if they should find that he did so, then their verdict should be for the defendants; that such debtor, having executed his agreement, cannot by law be permitted to contend that the service of the execution * is an act of oppression, and is not entitled to maintain an audita querela for such imprisonment.
    The jury found a verdict for the defendants, on the ground that the plaintiff did voluntarily surrender himself. They conversed about the question of fraud, but could not agree respecting it. The verdict was taken, subject to the opinion of the whole Court. If the direction to the jury was wrong, the plaintiff was to have a new trial; otherwise the verdict was to stand.
    The cause was argued at the last October term in this county, by Banister for the plaintiff, and White for the defendants.
    
      Banister
    
    contended that a debtor, once taken in execution and liberated by the consent of his creditor, can in no case be again charged in execution on the same judgment, unless he has obtained such liberation by fraud. This being the only exception, and which is not found by the jury in this case, the second imprisonment of the plaintiff was against law. The case put by the judge, in his direction to the jury, of a voluntary surrender by the debtor, pursuant to an agreement between him and his creditor, is not supported by the authorities. The plaintiff was discharged by the defendants upon a new contract; and the only remedy of the latter was on that contract. The execution once satisfied, as it had been by the commitment of the judgment debtor, was functus officio; and it could not be revived or put in force by any contract of the parties. If the note, given by the debtor and his sureties, was good in its origin, it could not have been avoided by the makers of it, because the promisees should refuse to do an unlawful act. At any rate, the creditors could not hold at the same time two securities for the same debt, and both of them valid against the debtor. 
    
    
      White
    
    argued that the agreement under which t. e plaintiff was liberated was entered into by the defendants at the particular request of the plaintiff, and was punctiliously adhered to by the defendants.
    There was, then, no such act of oppression as would support this process. The parties were competent to make the * agreement; there was nothing illegal in it, on the part of the defendants, it was purely an act of humanity. The oppression and hardship are wholly with the plaintiff. He would deprive the defendants of all remedy for a debt acknowledged to be due ; and the whole ground of his complaint is, that the defendants will not yield to this, but have pursued the very course he had agreed that they should pursue. They were obliged, by their promise, to give up the note, and then, by the plaintiff’s own agreement, the execution revived.
    This process of audita querela lies for a judgment debtor to be relieved against the oppression of his creditor, and is said, by Judge Blackstone, to be in nature of a bill in equity.  The facts in this case show any thing rather than oppression by the defendants ; and the plaintiff’s object is utterly inconsistent with equity and good conscience. In the case of Lovejoy vs. Webber, 
       it is said by the Court, that in this process, “ An allegation of fraud and deceit,” on the part of the defendant, “ seems to be necessary, and the case supposed must be one where legal process has been abused, and injuriously employed to purposes of fraud and oppression.” So far from there having been any thing of this kind in the conduct of the defendants in the case at bar, nothing could have been more humane, fair, and gentle, than their whole treatment of the plaintiff.
    On the part of the plaintiff, there is nothing but a mere technical rule.' But even this rule, as explained by the authorities, does not apply to the present case. Here was a voluntary surrender of himself by the plaintiff, and that in fulfilment of a legal and fair agreement, The case of Vigers vs. Aldrich went upon another ground ; for in that case the debtor had not surrendered himself to be taken a second time in execution; and all the other cases cited for the plaintiff depend on that case.
    It is conceded by the plaintiff that fraud on his part would effectually bar him. But unless he intended in good faith to submit
    
      himself to be retaken on the execution, upon the condition agreed, he was guilty of á * gross fraud, in taking the benefit of the defendants’ agreement and concession, and then attempting to deprive them of all remedy for their demand. If the cause is put on this narrow ground, the defendants are entitled to recover.
    
      
       4 Burr. 2482, Vigers vs. Aldrich. — 1 D. E. 557, Jaques vs. Withy.—6 D. & E. 525, Clark vs. Clement & Al. — 7 D. & E. 420, Turner vs. Hague. — 1 B. & P. Da Costa vs. Davis. — Barnes's Notes, 205.
    
    
      
       3 Black. Comm. 406. — See, also, Bac. Abr., tit. Audita Quert’a.
      
    
    
      
       10 Mass. Rep. 103.
    
   Parker, C. J.

The only question presented in this case is, whether the direction of the judge to the jury was right; that if the enlargement from prison was procured by the plaintiff for his accommodation, upon an agreement to return upon the event of his sureties’ choosing to surrender him, instead of paying the note they had given for him, and that, if he did voluntarily surrender himself, pursuant to that agreement, he was not entitled to relief under this process.

We are entirely satisfied that this direction was right, and that it is not shown to be otherwise by any of the authorities which have been cited by the plaintiff’s counsel. All those authorities tend to establish one principle, which we do not call in question, viz., that, when a judgment debtor has been taken in execution, and discharged by the creditor’s consent, he cannot be again taken upon that execution, or upon any other which may be issued upon that judgment; the arrest of the debtor upon execution, by order of the creditor, being considered even as a satisfaction at the common law.

The cases of fraud and of escape, however, are exceptions. So, we apprehend, is the case of a temporary or conditional liberation, under a promise to return if the terms are not complied with, and an actual return into custody in pursuance of such agreement; which is the rule that was stated by the judge in this case.

The authorities cited prove that the debtor cannot be taken again, even in such circumstances; but that the creditor must resort to his action for non-performance of such agreement. But if the agreement is voluntarily performed, the arrest is as at the beginning; the debtor having, by his own act and consent, restored things to the state they were in before his enlargement took place. In the case of Brown vs. Getchell & Al. a bond given by a debtor, who had been arrested, and being afterwards * liberated, voluntarily returned to prison, was held good; because the imprisonment, as it respected him, was not unlawful, hé having consented to it.

The jury in the case at bar have not, by their verdict, settled the point of fraud which was committed to them; but if the plaintiff could now be relieved, the note having been returned, and the plaintiff having procured his enlargement for the purpose of settling the debt, the most gross injustice would be done; and the creditors would, in point of fact, be cheated out of their judgment. But we think the case free from all doubt; and judgment must therefore be rendered on the verdict. 
      
       11 Mass. Rep. 11.
     