Pease v. Norton

| Me. | Apr 15, 1830

Mellen C. J.

delivered the opinion of the Court at the ensuing July term in Waldo.

In the case of Buker v. Haley & al. decided in this county, April term 1828, the bond declared on was given by the defendants to BuJcer, the officer who had made the arrest, and that circumstance was urged as an objection against the validity of the bond. The statute of 1824, ch. 281, being silent as to the person to whom the bond should be given, the court considered the objection as unsubstantial ; and that there was nothing in the act forbidding such a bond. In the case before us the bond was given to Pease the creditor, instead of Tilton the officer; and the objection now is that it should have been given to the latter. Our opinion is that such a bond might have been lawfully made either to the officer or to the creditor. In both cases the beneficial interest belongs to the creditor. The statute has since been repealed by the statute of 1828, ch. 410. The bond having been given to the creditor, cannot be impeached, as having been given for ease and favor. None are liable to that objection but such as are given to an officer. Winthrop v. Dockendorff, 3 Greenl. 156, and the authorities there cited.

It is urged that the bond is void because it was given for more than the amount prescribed by the statute. The penal sum is $247 88, and the amount of the plaintiff’s execution, debt and costs, together with the officers fees and charges as estimated and stated in the condition, amount only to ‡12404 ; whereas the statute declares that the bond shall be “ in the full amount of the debt and costs, and all legal costs arising thereon.” It would seem as though the bond was intended to be double the amount ol debt, costs and fees ; but it is not double to such amount. In fact, it was not such a bond as the law required, and might not have justified the officer in discharging Norton from his arrest and custody ; but still, the plaintiff has sanctioned his conduct, so far as he could, by accepting the bond, and commencing this action to obtain the benefit of it: and though it is not good as a statute bond, there is no reason why it may not be good at common law. It was voluntarily entered into, for the benefit of the defendant, Norton, to procure for him a lawful release from a lawful arrest; at least a temporary release. According to our decision in the before mentioned case of Winthrop v. Dockendorff & al. supported by the authorities there collected, we have no hesitation in pronouncing the bond in question as good at common law.

The next inquiry is whether the defendant, Norton, complied with the terms of the condition. It appears that the 17th of December, 1827, was the day appointed for him to take the poor debtor’s oath, at the office of Mr. Anderson ; at which time and place, he requested the justices to attend. But because the notice had not been duly given to the plaintiff returnable on that day, but had been altered, without Norton’s knowledge, so as to be returnable on the 19th, they declined proceeding on the 17th. Norton did not offer to take the oath on the 19th ; and no further proceedings were had 5 and, of course, no certificate was ever made by the justices. In these circumstances, all of which were known to Tilton, Norton, on the 27th day of December, being the last of the ten days mentioned in the condition of the bond, offered to surrender himself to the officer, and requested him to retake him on the execution, to be dealt with in the same manner as though no proceedings had been had. At this time Tilton know that Norion had not taken, nor attempted to take the oath by law proscribed: of course he well knew that the justices could not have made any certificate of their proceedings, because there had been no proceedings on their part. Norton might have been satisfied that he would not have been admitted to his oath, and concluded to proceed no further, but return to the custody of the officer. Why did he not receive him and commit him ? We see no good reason for his refusal. The surrender was offered within the limited time, and in the peculiar circumstances of the case, there being no appearance of fraud or management on Norton’s part, we think it was a substantial compliance with the condition of the bond.

But there is also another ground which seems to us to sustain the defence. Suppose that there was no disallowance by the justices, and that Norton had never made any offer to surrender himself to the officer; do the facts before us shew any breach of the condition of the bond ? According to that condition, Norton was to appear at the time and place designated therein for taking the oath by law prescribed. This part of the condition he performed. And if the justices should not allow him to take the oath, he was to surrender himself to the officer, or at the prison, within ten days after such disallowance. Now if the proceedings which were had, did not amount to a disal-lowance by the justices, then the condition of the bond is not broken ; because the term of ten days, during which a surrender might legally be made, has not as yet commenced. In either view of the case our opinion is, thai the present action on the bond cannot be maintained.