Howard v. Brown

| Me. | May 15, 1842

The opinion of the Court was afterwards drawn up by

Tenney. J.

— The acts of 1835 and 1836 for the relief of poor debtors provide, that the bond shall be given by the debt- or, and shall be in double the amount for which he was arrested or imprisoned. All the requirements must be contained in the condition; and if defective in that respect, it is not a statute bond. We think the debtor himself should execute the bond, in order to comply with the provision. The Court have heretofore settled, in the case of Pease v. Norton & als, 6 Greenl. 229, that the amount for which the debtor is imprisoned is the debt, costs and fees, and that there must be a precise conformity thereto, that the bond may be a statute bond. The one in the case at bar fails in both these particulars, and cannot be enforced in the manner contemplated in the acts referred to. The creditor has however put it in suit and has thereby accepted it. Is it a bond at common law ? It is contended that it is not, inasmuch as it purports upon its face to be made for principal and sureties to execute, and the former has not become a party to it, It ,has been regarded by the defendants’ counsel, as analagous to a bail bond, which has been adjudged invalid, unless signed by the principal. Bean v. Parker, 17 Mass. 591" court="Mass." date_filed="1822-03-15" href="https://app.midpage.ai/document/bean-v-parker-6405028?utm_source=webapp" opinion_id="6405028">17 Mass. R. 591. Bail is subject to liabilities and entitled to privileges differing in many respects from those of other sureties ; and one is the power, which he has at all times and places pver the principal, authorizing imprisonment, till the liability is discharged. The language of the Court in the authority cited, may apply to other cases, but the question before them related exclusively to the validity of a bail bond, and the decision was upon the ground, that it was an undertaking sui generis. The case, Wood, Judge, v. Whittemore & al. 2 Pick. 24, contains only the disposition of the action; none of the reasons for the opinion, entertained by the Coart, are reported. We apprehend the case at bar is distinguishable from that of bail; though the object sought in both may be to some extent similar ; but the relation existing between the principal and surety is in many respects different in the two, one from the other. We cannot believe that a surety in a bond, like the one here in suit, has power without legal process, to take the person of the debtor at any time and commit him to prison against his consent. When he has become his surety, he has taken upon himself the peril of injury, and can resort to him for damages, if any arise, in an action, as in other instances of suretyship. And we are-not aware that in undertakings of this kind, sureties have powers, superior to those possessed in ordinary contracts ; or that the obligee therefore, is restricted more than he is, in a bond purporting to be from several, who are not represented as holding the relation of principal and sureties, and a part only have in fact executed it. So far as the obligee of a bond, or the promissee in a note is concerned, the principal and sureties are equally liable. Howe v. Ward, 4 Greenl. 199.

If the view, we take, be correct, how does the obligation, which we are now considering, differ from those, which have been fully examined, wherein solemn decisions have been pronounced ? Cutter v. Whittemore, 10 Mass. 442" court="Mass." date_filed="1813-11-15" href="https://app.midpage.ai/document/cutter-v-whittemore-6404102?utm_source=webapp" opinion_id="6404102">10 Mass. R. 442; Scott & al. v. Whipple & als. 5 Greenl. 336; Haskins & al. v. Lombard & als. 16 Maine R. 140. It does not appear in this case, that there was any condition or reservation, at the time the defendants executed the instrument. They voluntarily executed it, and suffered it to pass without objection into the hands of the officer, who made the arrest. We see nothing which induces the belief that they expected or wished the debtor to sign it. There is good reason to suppose that the intention of the parties was, that it should be binding according to its terms, and we know of no authority, which leads us to doubt, that such intention should be carried into effect. We think it a bond at common law, and can be legally enforced as such.

The Court, under the authority to hear in chancery, conferred in the statutes of 1821, c. 50, § 2, are to determine what shall be the damages to be received in such cases. The statute of 1830, c. 463, does not apply. Hathaway v. Crosby & al. 17 Maine R. 448. The question of damages was therefore not properly submitted to the jury; but when the jury have from the evidence come to such a result as the Court approve, it has not been usual for the latter to interfere. The case finds that the debtor was reputed to be poor, and no counter proof was adduced, and we cannot perceive that the estimation was erroneous. Judgment for the penalty of the bond and full costs; and execution for a nominal sum in damages was properly ordered.

Plaintiff’s and defendants’ exceptions overruled.