47 N.H. 58 | N.H. | 1866
Two questions arise upon the facts agreed; first,
It appears that the debtor came to the jail a short time before twelve o’clock, and properly announced his purpose to the sheriff’s servant, having charge of the jail, but, with the knowledge of the servant, left the jail a few minutes before twelve o’clock to dine with his brother about a half a mile distant, and was gone until one, or half past one o’clock.
During this time we think he was not at the jail, actually or constructively, within the meaning of the law. The statute requires in terms, that the "debtor surrender himself up to the keeper of the jail in the county where he was originally arrested or committed, and remain at said jail from twelve o’clock at noon till three o’clock in the afternoon of said day.”
To constitute a valid surrender, the debtor must make known to the jailer who he is, and the purpose of his coming, and in short, must do that which would enable the officer having the execution to arrest and commit the debtor; and this has been so strictly construed as to hold that a statement by the debtor to the jailer’s wife after having inquired for the jailer himself, that he supposed he was one concerned in the execution which he named, without stating which party he was, was not a sufficient surrender. French v. Wingate, 17 N. H. 264. But no objection is made here to the surrender, and the case cited is in point more especially as showing the nature of the compliance which is required.
The object of requiring the debtor to remain at the jail during the time specified is to enable the creditor to arrest him there if he choose to do so, and at any time during the whole period of three hours. The purpose is not to give security that the debtor shall at that time be within the reach of the officer having the execution so that he can arrest him, but that he shall be at the jail ready to be taken and imprisoned ; and therefore no return upon the execution that he could not be found, is required. The debtor has in fact been already arrested and imprisoned upon the execution, and has been permitted to go at large for a year upon his giving security that he will return to his imprisonment at the end of the year, if he does not before that'time take the poor debt- or’s oath.
The remaining at the jail must be actual, so that the officer coming there at any time during those three hours would find him at the jail; and it would not be sufficient that he was enabled to learn that he had been there, and could now be found at another place a half a mile distant : neither would it be sufficient if after the surrender he had concealed himself at the jail for a part of the time, instead of openly remaining there. If the debtor was at liberty to be absent for an hour or an hour and a half, and at the distance of half a mile, upon what principle could it be said that he might not be at a distance of a whole mile, or anywhere within the town, or even anywhere within the officer’s precinct?
A construction which should save the forfeiture in this case, would
Upon the question whether the forfeiture was saved by the fact that the creditor was not there to charge the debtor in execution, we have reached a satisfactory conclusion, and that is, that the forfeiture is not saved.
There is nothing in the law, we think, that furnishes any reason for dispensing with the surrender upon the ground that the creditor would not have charged the debtor in execution — the provision requiring such surrender contains no such condition, nor is it to be implied from the nature of the case. The terms are explicit, that he shall surrender himself and remain at the jail from twelve until three o’clock, and so is the condition of the bond; and the fact that the creditor hau determined not to charge the debtor in execution could not affect the obligation of the latter, unless so communicated to him as to amount to a waiver of it.
In French v. Wingate, 17 N. H. 264, there was no evidence of any purpose to charge the debtor on execution; and it would seem that it had not been lodged with the jail-keeper.
In Scovill & Wife v. Holbrook, 22 N. H. 269, the creditor had been cited to appear at the jail at ten o’clock in the forenoon of the day following the expiration of the year, on the debtor's application to take the poor debtor’s oath j and the creditor with his attorney appeared and opposed the application, examining the debtor upon oath; but he was allowed to take the poor debtor’s oath, after which, and before one o’clock, the debtor left the jail and did not again return. It was held that there was a breach of the bond, because the poor debtor’s oath had not been taken within the year, nor had the debtor remained at the jail the whole three hours, and yet it appeared that no execution had been issued since the return of the one on which the debtor had been arrested. This is a strong authority for the position, that the obligation of the debtor to surrender himself and remain at the jail, the three hours, is not affected by the mere absence of a purpose to charge him in execution.
In that case of Scovill v. Holbrook, it may be said that the creditor might, and perhaps would, have obtained an alias execution and charged the debtor had he remained at the jail, instead of leaving before one o’clock, and thus broken the condition of the bond. So in the case before us, the creditor might have charged the debtor had he not learned that he was absent from the jail during a portion of the three hours, and that the bond was thereby forfeited. We, however, put our decision upon the ground, that, to save the forfeiture, the debtor must have surrendered himself and remained at the jail the whole of the time specified ; and that the mere absence of any purpose to charge him in execution could not affect this obligation.
There must, therefore, be
Judgment for the plaintiffs.
