Scovell v. Holbrook

22 N.H. 269

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Eastman, J.

The condition of the bond on which this suit is brought, is, that Hodskins, the prisoner, should, within one year from the date of the bond, take the oath prescribed for the relief of poor debtors, or, in default thereof, surrender himself to prison as prescribed by law. The provision of the statute upon the subject is as follows: “ If the debtor, giving such bond, shall not, within one year from the date thereof, take the oath or affirmation prescribed by law for the relief of poor debtors, or be otherwise discharged, he shall, on the day next after the expiration o| said year, unless the same shall be Sunday, and in that case, on the Monday following, 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, and his sureties on such bond shall be thereby discharged.” Rev. Stat. chap. 199, § 5. And the ninth section of the same chapter provides, that on condition broken, the creditor shall recover, by action on such bond, his just debt or damages, and costs thereof, &e.

By the provisions of the statute, and the terms of the bond, it became necessary for the debtor, if he would perform the condition of the bond and avoid liability thereon, either to take the poor debtor’s oath within one year from the date, or surrender himself at the jail on the day next after the expiration of the year, and there remain from twelve o’clock noon till three o’clock in the afternoon. The condition could be kept in two ways, — by taking the oath within the year, or by a surrender at the jail on the day after, and remaining there the prescribed time. Has either been done ?

By the Revised Statutes, prescribing the mode of reckoning time, the day of the date of the bond is to be excluded in the computation, in making up the year. Rev. Stat. chap. 1, § 25. And prior to the passage of the Revised Statutes, the same rule prevailed, so far as bonds of this description were to be regarded. Thus, in Bell v. Adams, 10 N. H. Rep. 181, it was said, that in computing time in which a debtor who has been arrested on execution and given bonds under the statute, must apply and be admitted to take the oath prescribed for poor debtors, the day of the arrest is to be excluded. To the same effect is Odiorne v. Quimby, 11 N. H. Rep. 224.

The bond in suit was dated December-10th, 1849. Excluding the day of the date, the year would commence on the 11th day of December, 1849, and terminate on the night of the 10th of December, 1850. That would make the full year. On the 11th of December, 1850, the debtor was at the jail for the purpose of taking the poor debtor’s oath, which was then administered to him. He did not therefore take the oath within the year, but on the day succeeding; and his taking it at that time, was an act done without any provision of law, and no performance of the condition of the bond. , The fact that the plaintiff and his attorney were present when the oath was administered, does not remedy the difficulty under which the defendant labors. The time within which the oath could be taken, had then expired; and' no appearance of theirs, or interrogatories put by them, or opposition made to the debtor’s taking the oath, could change the obligations contained in the bond, and extend the time within which the oath was to be taken. It requires acts of a higher degree than those, to waive the conditions of a sealed instrument.

The case however finds, that when the debtor was at the jail on the 11th of December, the day after the expiration of the year, he remained there from ten o’clock in the forenoon till one o’clock in the afternoon, at which time he left the jail, after having taken the oath, and did not again return. The statute requires that the debtor shall surrender himself to the keeper of the jail, and remain at the jail from twelve o’clock noon till three o’clock in the afternoon. The surrender is to be made to the keeper of the jail. He should be notified of the purposes for which the debtor is there. Unless that be done, — unless the debtor give his name, and state the object of his being there, or do some act equivalent thereto, so that he can be readily arrested if desired, — there is no surrender within the meaning of the statute. Had the debtor in this instance remained at the jail during the prescribed time, a question might arise under the circumstances of the ease, whether, as the plaintiff and his attorney were present, there was not evidence from which a jury might find a surrender. But inasmuch as the debtor left at one o’clock and did not return, it is clear that no surrender has been made according to the requirements of the statute.

The debtor not having taken the oath within the year, nor surrendered himself at the jail on the day after, according to the provisions of the statute, the condition of the bond has not been kept in either respect; and, according to the agreement of the parties, there must be judgment for the plaintiff.

In the view in which the Court have taken of the case, it has become unnecessary to examine with any particularity the exception taken to the application and notice. As a general principle, an appearance upon notice served, without any exception being taken at the time of service or appearance, is a w'aiver of all formal defects. A somewhat similar question to this was decided in Bunker v. Nutter, 9 N. H. Rep. 554.

Judgment for the plaintiff.