Bulkley v. Finch

| Conn. | May 15, 1870

Carpenter, J.

The first question in this case arises on the motion in error. The claim is that the court erred in overruling the motion in arrest of judgment. The ground of that motion was that the declaration is insufficient. The alleged insufficiency consists in the want of an averment that a demand or request was made of the defendants to pay the money named in the bond declared on; and also in the want of an averment that a reasonable time for the payment of the money had elapsed before the commencement of this suit. By looking at the declaration it will be seen that the pleader, instead of declaring upon the penal part of the bond generally, as lie might have done, took the more usual, and perhaps the better course, of setting out the condition, and averring a breach.

If, in describing the penal part of the bond, ho had omitted the words “ in a reasonable time when thereto requested,” this question probably would not have arisen. By striking out those words, which relate to the time of payment, it will clearly appear from the declaration that the bond was not, and could not be, payable until there was a breach of the condition. That averment therefore is inconsistent with other parts of the declaration; and being, to some extent at least, repugnant, and the declaration being complete and sufficient without it, it may and ought to be treated as surplusage. If so, the necessity for averring a demand, and that a reasonable time had elapsed, disappears.

And it is very obvious that no such averment was necessary in itself to make a good declaration upon such a bond and condition set out together. So far. as the plaintiff is concerned both defendants are principals. Upon a breach of the condition the bond at once became payable. One of the defendants must have had knowledge of the breach as soon as it occurred, as he was a party to the breach. No notice to him, and no request, were therefore necessary to fix his liability. The parties have not stipulated that a reasonable time shall be allowed for payment, but on the contrary the fair inference from the terms and nature of the contract is, that he is bound to pay immediately. The other defendant must stand in the same situation. He is not, except as between himself and his co-obligor, a surety or guarantor, but is liable as principal upon an absolute contract. Seymour v. Harvey, 8 Conn., 63" court="Conn." date_filed="1830-06-15" href="https://app.midpage.ai/document/seymour-v-harvey-6574370?utm_source=webapp" opinion_id="6574370">8 Conn., 63.

The remaining questions arise under the motion for a new trial.

1. The officer who served the execution by virtue of which Curtis Finch was arrested, made demand of him for payment of the execution. Payment was refused. He then made demand for property whereon to levy to satisfy the same, but none was shown him. As he knew of no property, he arrested the body. The court instructed the jury that the arrest was lawful. This instruction was unexceptionable. If the debtor refuses to pay, and refuses to turn out property, and the officer knows of none, he may safely assume that there is none. If the debtor has property he knows it. If he desires to protect his body from arrest, it is his duty to make it known to the officer. If he fails to do so,' it comes with ill grace from him to complain that the arrest was illegal. Allen v. Gleason, 4 Day, 376" court="Conn." date_filed="1810-06-15" href="https://app.midpage.ai/document/allen-v-gleason-7866363?utm_source=webapp" opinion_id="7866363">4 Day, 376.

2. After the arrest “of the defendant, and before the execution of the bond in suit, the defendant, at 1ns own request, was permitted to go to the court-house in Bridgeport, in company with the jailer, to attend to some 'matter of business. The defendants asked the court to instruct the jury that that was a voluntary escape, and rendered the subsequent detenfcion illegal, and consequently the bond in suit void. The court refused so to instruct the jury. I think the defendants were not entitled to this instruction, even if it be assumed that the court-house was off the prison limits. Such a transaction might, perhaps, constitute an escape as between the creditor and the sheriff, but I can see no reason for allowing the debtor, at whose request and for whose benefit he was permitted to go to the court-house, to set up this claim and on that ground x’elieve himself from liability. But however this may be, a conclusive answer to this claim is found iix the fact that it no where appears that the couft-lxonse was off the prisoix limits. That fact is material to this defence, and if the defexxdants would avail themselves of it the burdeix was on them to show it.

3. The chax’ge of the court, “ that it was not necessary to. aver iix the plaintiff’s declaration a demaixd or request made, nor if averx’ed was it necessary to pi’ove it,” was correct. So also was Ms refusal to inform the jury what coxxstituted a reasonable time, aixd when the reasonable time mexxtioned in the declaration begaix to run. These points have already been sufficieixtly considered. I would remark however that the claim made in the argument, that by reasoix of these averments there was a variance between the declaration and the proof, cannot avail the defendaixts hex-e, inasmuch as it does not appear that the question was xnade iix the court below.

4. After the delivery of the bond, the jailer required the prisoner to return to the jail at night, which he did every night, with one exception,.until his escape. And this, the defendants claimed, vitiated the bond, and the court was asked so to chai’ge the jury. The court declined so to charge.

Precisely on what ground this claim is based is not readily perceived. There is no pretence that the bond was procured by fraud, or that there was any misrepresentation, either by the plaintiff or his jailer, in inspect to the consideration of the bond. Nor is it claimed that any subsequent unlawful act of the jailer makes the bond illegal. The only plausible claim that can be made in respect to the matter is that there has been a practical failure of consideration. But that is not a defence. In the absence of fraud, nothing short of a total failure of consideration will be a complete defence to the action. A partial failure may in some cases be a defence fro tanto ; but no such claim was made in this case, and the court was bound to meet only the claim made.

We cannot yield our assent to the claim that the prisoner had a right to depart from the limits to escape imprisonment, even though it be conceded that the imprisonment was illegal.

If it was illegal, he was not bound to submit to this requirement, and would have been justified in resisting it, if necessary, by force. If compelled to submit, the appropriate remedy was by an action for damages.

The judgment of the Superior Court must be affirmed, and a new trial denied. '

In this opinion the other judges concurred.

* Judge Phelps of the Superior Court was called in, the vacancy made by the death of Chief Justice Hinman not yet having been filled.