8 Conn. 63 | Conn. | 1830
The first question presented in this case, is; whether the writing declared on in the first count of the declaration, is a bond. It is an instrument in writing not under seal; and therefore, by the common law, not a specialty. A sealed instrument precludes a/i inquiry into the consideration; the consideration is emphatically said to be locked up. A specialty evinces a consideration. This constitutes the essential distinction between instruments under seal, and those not under seal. The latter are parol contracts; and the consideration of them, while they remain in the hand of the original party, may be enquired into ; and the contract may be defeated upon proof of want of consideration. 2 Black. Comm. 305. Pow. on Cont. 330, 2, 3. Rann v. Hughes, 7 Term Rep. 350. in notis. All contracts by the common law are thus distinguished into specialties, and agreements by parol. There is no third class. This doctrine has been frequently declared at the circuit; and it was sanctioned, by this Court, at the last term, in the case of Montville v. Haughton & al. 7 Conn. Rep. 543. The question is no longer doubtful, but is settled here according to the rules of the common law.
It is not here intended to say, that promissory notes expressed “for value received,” and not payable to order, and not under seal, are not specialties. The legislature, by limiting the time to seventeen years, within which an action may be brought on them, while six years only is allowed for promissory notes payable to order, seems to have regarded them as bonds; and it is believed, that they have been so considered by our courts, and by the profession; but no opinion is given on that point.
2. It is urged, that no other writing could have been lawfully taken but a bond with sureties. This objection comes with
But broader ground may be taken and sustained. There is clearly a good consideration for this writing, viz. the indulgence of the prisoner with his personal liberty, without the walls, and within the limits of the liberties of the prison. It is not opposed to public policy, nor is it an unlawful agreement for ease and favour; for it is the policy of our law to give to debtor's such liberty, and such ease and favour, if it may be so called, as is contemplated by this contract. It is difficult, then, to see on what foundation this objection rests.
Moreover, it has been the constant practice, in some parts of the state, with the sheriffs, to take a note of hand, conditioned that the debtor shall remain a faithful prisoner, &c. This was practised, extensively, in the county of Fairfield; and many suits were sustained on them, without a question.
This agreement or contract is good at common law. Freeman v. Davis & al. 7 Mass. Rep. 200. Burroughs v. Lowder & al. 8 Mass. Rep. 373.
3. Another objection is, that the condition shows, that the instrument is invalid. This condition i —“if he shall well and truly keep himself within the said prison, in which he is confined, and not depart therefrom until lawfully released,” &c. This argument supposes, that the defendants entered into this contract to indemnify the plaintiff against the escape of the prisoner, when in close custody and locked up in gaol. This must be a very rigid, not to say unaccountable construction. But, if this be its construction, is it clear, that the instrument would have been thereby defeated? Why may not a prisoner voluntarily enter into a contract of this description, and thus lull the sheriff into such security as to be entirely off his guard in rela
4. It is again objected, that a request to fulfil the contract is not alleged with time and place, nor proved. Here the answer is two-fold: first, the instrument is silent respecting any request. It is alleged in counting on it, that it was to be paid on request, that is, “when they, the defendants, should be thereunto requested.” How can this objection now be made? The defendants did not, as appears by the contract, undertake to pay on request. These words in the declaration are words of form—mere surplusage, and cannot affect the merits of the case. All the forms of declarations on bonds for the payment of money only, contain such an allegation. Secondly, where there is no previous indebtedness, and there is a promise to do any act upon request, a request must be laid specially, and proved. But how does that principle bear on this case? Here is an agreement to pay a certain sum, if the defendant, the debtor, shall depart from prison. He violates his contract; and instantly becomes liable for the damages; and his sureties are responsible with him.
5. Again; it is further objected, that the sheriff discharged the prisoner from gaol. If the plaintiff voluntarily permitted him to escape, he cannot retake him, nor subject him or his sureties to damages for his escape. But how stands the proof in relation to this fact? The court charged the jury, that if they found, that immediately after the sheriff had discovered that the prisoner had escaped, he refused to receive him again as his prisoner, though he then had returned, and was then within the limits, he was not bound to receive him, (though he might have so done,) but was entitled to recover for the escape. Dash v. Van Kleeck, 7 Johns. Rep. 477. 1 Swift’s Dig. 544. This is the undoubted law on the subject. If the sheriff accepts the prisoner, which he may do, and has not become liable to the creditor, he cannot recover ; but if, when he first discovers the escape, he refuses to stand charged with the prisoner, he is not obliged further to trust so slippery
6. The only remaining question is, whether the charge of the judge to the jury, that the rule of damages was the debt, interest and costs, was correct. This point is established in Freeman v. Davis & al., 7 Mass. Rep. 200. Burroughs v. Lowder & al. 8 Mass. Rep. 373. Mandell v. Barry & al. 9 Johns. Rep. 238. 1 Swift’s Dig. 544. Indeed, if the escape was not purged by his return; if under the circumstances, the sheriff was not bound to receive him as his prisoner, which is before shown; then it is a plain case; he has escaped, and is still out of gaol. If the defendants are not now liable, when will they be liable? If not liable for the whole debt, for what amount are they liable?
The motion, therefore, must be denied ; and there is nothing erroneous in the judgment of the court below.
New trial not to be granted; and Judgment affirmed.