1 N.J. Eq. 43 | New York Court of Chancery | 1830
It is contended, in the first place, that the complainant has not by his bill made such a case as will support his action at law, even if the mistakes in the bond are rectified. And it is very properly admitted, that if this be so the bill cannot be sustained, and the demurrer is well taken. The ground of objection is, that the condition of the bond which is sought to be reformed, is larger than the statute requires or authorizes, and therefore the bond itself is void. The condition of the bond is,
If the condition of the bond imposes no new duties on the obli-gors, or no duties diverse from those required by the statute as justly and legally expounded, then it will be good. And I am clearly of opinion that this condition is within that rule. The condition in the statute is very brief. It is simply, that the prisoner shall keep within the bounds of the prison. The condition of the bond is, that he shall keep within the bounds of the prison limits, and not walk oat or depart the same. This latter part imposes no new duty. Tt is simply a repetition of the former part, but clothed in a new dress. It is mere surplussage, and cannot vitiate. But the condition of the bond goes farther, and says, the prisoner shall not depart the limits until he be discharged by due course of law. And it was contended that this might operate hardly upon the prisoner : that if the debt was paid, and he departed the limits without some judicial order, the bond would be forfeited. If this were even true, would it not apply with equal force to a bond, the condition of which was simply, that the prisoner should keep within the limits? This, taken literally?
But it is alleged that if the bond is a good bond in these particulars, the complainant does not show such a case as entitles him to relief. He does not show that he is damnified-He has not paid the money, and the plaintiff in the execution may never call on him. That when the bill was filed, the suit for am escape was not instituted ; and we must regard the rights of the parties as they were when the bill was filed.
It is expressly stated in the bill, that an action for the escape had been brought against the complainant, by the Paterson bank, and was then pending. This allegation must be taken as true, and is so considered by the court under the demurrer filed. It is not, however, deemed important. This bond is not a bond of indemnity, strictly speaking. There is no necessity of showing an actual damnification. The bond is forfeited by the defendant’s going off the prison limits. It is an escape, and the sheriff is liable. It does not lie in the mouth of the defendant to say, you are not damnified; you have not yet been obliged to pay the money: and while you thus remain, uninjured, you have no
The third objection raised to the complainant’s bill, is, that it seeks to get the bond rectified in order to enforce a penalty; and it is said that equity does not assist in the recovery of a forfeiture. That is unquestionably the doctrine of this court. But the attempt to apply it to a case like the present, is not sustained even by the decisions adduced by the defendants’ counsel. The case of Livingston v. Tompkins, 4 John. C. R. 415, was an injunction case ; and the injunction was moved for on the ground, that the grant from the plaintiff to the defendant had ceased and become void, in consequence of the matters charged in the bill. In that case, Chancellor Kent referred to a distinct and well known class of cases, showing that a man is not bound to answer so as to subject himself, either directly or eventually, to a forfeiture or penalty : and that a court of equity will not aid in working a forfeiture, or divesting an estate. The cases of Hosburg v. Baker, 1 Peters’ U. S. R. 232, and Paxton v. Douglass, 19 Ves. 224, also referred to, are of the same character. They have reference to the forfeiture of some privilege, the divesting of some estate, the taking away of some right by condition subsequent or otherwise ; or to the discovery of some matter which may render an act done illegal, and thereby subject the party to a penalty. To effect these objects, equity will not interpose. But neither the rule nor the reason of the rule, has any application to this case.
The real question arises upon the fourth objection ; which is, that although a court of equity will relieve, in cases of mistake, to •prevent a party from enforcing an agreement entered into by
The bill states, that Allen was duly arrested, by virtue of the writ, and was in custody : that he requested permission to walk within the prison limits ; and, ottering sufficient sureties, the complainant agreed to accept them, and thereupon prepared a bond, which was executed by the defendants: and that then the complainant permitted the said Allen to have the benefit of the prison limits. The bill further states, that the alleged variation between the bond and the writ was owing to the “ hurry of business, and by mere accident and mistake.” There is no explicit agreement set forth in the bill, as having been made between the complainant and all the defendants, or even between the complainant and Allen himself, in relation to the kind of bond that was to be given ; and it was contended that the bill was defective in that particular. I think it is not. This is a case w7here the agreement, if entered into at all, must have been regulated by law'. It admitted of neither extension nor abridgement. If, then, the defendant, Allen, on being arrested, requested to have the benefit of the limits, and offered sufficient sureties to enable him to procure it, and the sheriff agreed he should have it on giving bond with security, and the bond was accordingly prepared and given; it is manifest that the one party agreed to give, and the other to accept, such a bond as would enable the sheriff legally to release the defendant from arrest in that particular case, so far as to give him the benefit of the limits. The agreement and the mistake are sufficiently charged. How or by what proof they may be sustained, is not now7 to be considered.
The inquiry, then, presents itself, can such a mistake be permitted to be shown by the complainant, to correct the bond on which he seeks to recover : or can it only be shown by the defendant, w'hen set up to rebut an equity ? This is not alleged to be a case of fraud, but of mere mistake; and it
There are cases which seem to lead to a different conclusion : such as Woolam v. Hearn, 7 Ves. jr. 211; Higginson v. Clowes, 15 Ves. jr. 516 ; and Clinan v. Cook, 1 Scho. & Lef. 39. But these are all cases where bills were filed for a specific performance, and in which the complainant undertook to aver against his own instrument. They appear. to be governed by a different rule, the correctness of which has been questioned by high authority. See 4 John. C. R. 148, Kisselback v. Livingston. But in relation to reforming deeds, bonds, mortgages, «fee. the weight of authority is evidently in favour of the power of this court, whether sought on the part of tire complainant or the defendant ; and that, whether the matter to be corrected has originated iri fraud or mistake. The statute of frauds does no more protect the defendant against mistake than the plaintiff: both stand on the same foot. In this country the principle has been recognized very distinctly by chancellor Kent, in Wiser v. Blachly, 1 John. C. R. 607, where a guardianship bond was corrected and enforced, even against sureties, and upon the broad principle, that where a mistake was manifest, the court, in the exercise of its ordinary jurisdiction, would correct it, and hold the party according to his original intention. So in Gillespie v. Moore, 2 John. C. R. 585, the court, after collecting and revising most of the cases on the subject, decided that equity would relieve against a mistake, and that as well when the complainant seeks relief affirmatively, on the ground of mistake, as where the defendant sets it up as a defence, or to rebut an equity. This case came under review in the court of errors, on the argument of the appeal of Lyman v.