Hatch v. Norris , 36 Me. 419 ( 1853 )

Appleton, J. —

It appears that Norris and Crosby, judgment debtors in an execution, in favor of the plaintiffs, having been arrested thereon, gave a joint bond, conditioned that if they should in six months, from its date cite the creditors before two justices of the peace and quorum, and submit themselves to examination, and take the oath prescribed in the twenty-eighth section of c. 148, of R. S., or pay the debt, interest, cost and fees arising in said execution, or deliver themselves into the custody of the keeper of the jail in Belfast, and go into close confinement within said six months, then their obligation was to be void, otherwise to remain in full force. It is in proof that Crosby, one of the principals in this bond, so far as related to himself, performed its conditions and obtained a certificate of his discharge as a poor debtor.

The two judgment debtors are described in the bond as principals, and such is their relations to their creditors and sureties; but as between, themselves, each is principal for the performance of the condition, so far as relates to himself and surety for his co-principal obligor, that he will duly perform the conditions to be by him performed. This is the law in all cases between principals. As between them, each is principal for his share, and as to the rest, a surety for his associates. Goodall v. Wentworth, 20 Maine, 322; Craft v. Mott, 4 Coms. 603. The performance by Crosby of his part of the conditions of the bond cannot relieve him from his obligations as surety for Norris.

The bond in this case having been signed by more than one debtor, cannot be regarded as a statute bond. By R. S., c. 148, § 20, the debtor arrested or imprisoned on execution, to procure his release, shall give a bond conditioned “that he will, within six months thereafter cite the creditor before two justices of the peace and of the quorum, and submit himself to examination, and take the oath prescribed in the twenty-eighth section of this chapter, or pay the debt, interest, costs and fees arising in said execution, or deliver himself into the custody of the keeper of the jail into which he is liable to be committed under said execution.” All the acts to be done and performed in the condition are personal acts, to be done and performed alone, and. not jointly. Every stipulation in-the condition looks to a performance by the obligor alone. The various provisions of the statute have reference to a several bond and a several performance. The arrest of each debtor is a separate and distinct act of the officer. The citation to the creditor, the selection of the justices, are the individual acts of the debtor thus citing and selecting. The examination of the debtor, and the oath to be administered, and the certificate of discharge which may be given by the magistrates, are all several in their nature, as well as by the language of the statute. If there be fraudulent concealment, the person so fraudulently concealing is to be deemed guilty, and to be punished for his own acts. From the arrest to the final conclusion by discharge or imprisonment, every provision of the Act specially applies to several acts of each debtor and to several bonds to enforce their performance, and to several disclosures and certificates by which each is to be relieved from the penalties attached to the non-performance of the conditions therein specified.

It is the duty of the debtor to furnish his bond. The principal defendants having been arrested, have procured their discharge in consequence of giving the bond in suit. They have not performed its conditions. There is no evidence that it was not voluntarily given. It is therefore good at common law. From the proof the plaintiff is entitled only to nominal damages. Judgment is to be rendered for the penalty of the bond and full costs, and execution to issue for one cent, as damages. Howard v. Brown, 21 Maine, 385; Wallace v. Carlisle, 20 Maine, 374. Defendants defaulted.

Shepley, C. J., and Tenney, Rice and Hathaway, J. J., concurred.