French v. Wingate

17 N.H. 264

Opinion

Woods, J.

The condition of the bond required of Leach two things to be performed on the day next after the expiration of the year from the arrest: To surrender himself up to the keeper of the gaol, and to remain at the gaol from noon until three o’clock in the afternoon. The latter there is evidence that he did. Lid he surrender himself up to the keeper ?

This act, it is plain, the statute intends shall be performed at the gaol. He shall surrender himself up to the keeper of the gaol, and remain at the gaol from twelve o’clock till three. This phraseology imports that the surrender is to be made at the gaol; and it is not to be presumed that the discharge of the condition of the bond should have been made to depend upon the performance of an act which the absence of the gaoler might render difficult or impossible.

The party did not attempt to surrender himself. He did not make known his name, or the purpose for which he was there. He did no act at the gaol which could have enabled the gaoler, if he had been there with the precept, to execute it. He said that he was a party concerned in the execution, but he did not say which party.

The requisition of the statute is clearly more than that. The party is required to surrender himself up. The meaning of that is, that he should do that which would enable the sheriff, if present, or any other person having authority to do so, to arrest and commit him on the precept. His mere presence is not sufficient for that purpose. It must be attended with such acts or expressions as clearly to denote that he is there for the purpose of becoming a prisoner in execution, if the gaoler elect to receive him as such. All this is implied by the statute in the term “surrender;” or the word might have been wholly omitted.

. According to the agreement of the pai’ties, therefore, there must be

Judgment for the plaintiff.