Burnett v. Small

73 Mass. 548

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1856
• Status: Published

Opinion

Metcalf, J.

The court are of opinion that the rulings at the trial were right. It was a condition of the bond in suit, that Briggs, the principal obligor, if not legally discharged within ninety days from the day of his commitment, should surrender himself to the jailer, to be held in close confinement. This condition was not performed by him. He remained on the prison limits two days after the ninety days had expired, instead of surrendering himself to close confinement. For this breach of the condition, the Rev. Sts. c. 97, § 68, provide that in an action on the bond, execution shall issue for a sum not less than the sum due on the original judgment, with interest thereon, and with all the lawful costs and charges that shall have arisen after the issuing of the original execution.

The case of Moore v. Bond, 18 Maine, 142, cited for the defendants, decides merely that an obligee, in a bond like this, shall not take advantage of any indulgence which he has consented to give to his debtor. In the present case, the plaintiff gave indulgence to Briggs, as to the time of his examination and taking the poor debtor’s oath ; but he did not consent that Briggs might omit to surrender himself to the jailer at the exoiration of ninety days. Exceptions overruled.