19 Me. 409 | Me. | 1841
The opinion of the Court was delivered by
The true construction of the condition of such a bond, us is in suit in this case, received the consideration of this Court in Taylor & v. Hughes & al. 3 Greenl. 433. It was there held expressly, that the condition was not performed, unless the party charged complied with the order of Court, for the maintenance of the child, and for the giving of such security, as is required by law. That case is, in our judgment, a just exposition of the condition of the bond. In that case there was no order of commitment, based upon the failure of the defendant to comply with the order for maintenance, and for further security.
Sucli an order was made here, which was carried into effect. And it is contended that this was a substituted order, a compliance with which fulfilled the condition, and discharged the sureties. Sul it appears to us to have been, not a substitution for the first order, but as ancillary to it, and made expressly for its enforcement. It might aid, but could not injure, the sureties. The power of the Court was thereby brought to act upon the principal, to compel him to perform what they had undertaken he should do. If it proved effectual, they were thereby discharged ; but if not, they were placed in no worse condition. In the case before cited, it is very manifest from the opinion of Mellen C. J. that a mere order of commitment would not, have the effect to relieve the sureties from their liability.
Nor do we find any thing in the statute of 1831, c. 487, which can affect the bond under consideration. It does not refer to the bond of the accused, or to his sureties. It provides only for his enlargement from prison, where he has been committed, in the manner, and upon the conditions, there prescribed. As the commitment was by order of Court, his discharge therefrom by order of law, varies not the obligation
The statute of 1836, c. 210, did provide a mode, by which the sureties might be discharged, upon surrendering their principal, at any time before final judgment. This was not done; and we have no authority to extend the relief there afforded, upon any supposed analogy between their liability and that of bail in civil actions. That analogy would not have discharged them upon such surrender, but for express legislative enactment.
Judgment for the plaintiff.
