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.
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.