Hathaway v. Crosby , 17 Me. 448 ( 1840 )

The opinion of the Court was drawn up by

Shf.pi.ey J.

There is a material difference between bonds with a condition, which provides for the performance of some covenant or agreement, and those conditioned to be void or defeated upon performance only of some act or duty. In the latter class of bonds with a defeasance the obligor is not obliged to perform the act. lie may do it or not at his election; and no action of covenant can be maintained against him. In the former class the obligor is obliged to perform in the manner provided in the condition, and the penalty of the bond is but a security for it. Covenant will lie to compel a performance, and equity will in a proper case decree it.

The additional act régulating judicial process and proceedings, c. 463, provides, “ that in all actions upon any bond or penal sum for the performance of any covenants or agreements, and in all actions of covenant, the plaintiff- may assign as many breaches, as he may think fit“ and in all actions upon any bond or penal sum as aforesaid; if the verdict be for the plaintiff, the judgment shall be as heretofore for the amount of such bond or penal sum, and the jury shall ascertain by their verdict .the damages for such of said breaches, as the plaintiff upon trial of the issue shall prove.” This statute extends only to that class of bonds, which provide for the performance of some act by a covenant or agreement. The language does not include any other; and the jury are authorized to assess damages only for such of the breaches of any such covenant or agreement as the plaintiff may prove. The substance of these provisions appears tó have been derived from the statute of 8 and 9 W. 3, c. 11, and it has been-decided, that bonds for the payment of money by instalments are within that statute, but that those for the payment of a sum certain, at a day certain, are not within it. Murray v. Earl of Stair, 2 B. & C. 82.

.The bond in this case was strictly a bond of defeasance. The obligors do not stipulate in the condition to pay any sum of money or. to perform any act.. They only secure to themselves an option to avoid the bond by the performance of certain acts. The obligee could not exact performance. He could only claim the penalty by an action of debt in case of neglect to perform. The language used in the case of Potter v. Titcomb, 7 Greenl. 334, must receive a construction with reference to the subject then before the Court. And where the statute is said to embrace all bonds, it must be understood to mean all bonds of that description. This bond not being within that statute, the rights of the parties ,upon a forfeiture are to be determined by the Court under the pro-, visions of the act for giving remedies in equity, c. 50, § 2.

There was error in submitting the assessment of damages to the jury, but under our statute providing for exceptions, it does not ne_ eessarily follow, that there must be a new trial. That stat. c. 193, § 5, provides, that this Court “ shall render judgment thereon, or may grant a new trial at the bar of said court as law and justice may require.” And if upon examination it should prove, that the plaintiff has not been injured by that error, and that the judgment is such as should have been rendered by the Court without the aid of a jury, justice would not require a new trial merely because a jury has come to a correct conclusion respecting the damages.

In the bill of exceptions taken by the defendants the facts submitted to the jury on this point appear. It is there stated, that the defendants “ did prove, that said Crosby was destitute of property at the time when the original demand in this action accrued in 1826; that he had continued to reside within this State, and most of the time within this county from that date to the present time ; was present in court at the trial; and had no property during any part of said period of time.” It further appeared, that he had regularly notified the creditor of an intention to take the poor debtor’s oath on the 28th of May, 1836, but that the justices did not proceed to take his disclosure because the execution had erroneously issued in the name of James instead of Warren Hathaway. That error having been corrected, and the name of Warren, having been substituted for that of James in the bond by the agreement of the sureties, he caused the creditor to be duly notified, and took the poor debtor’s oath on the 12th of Nov. 1836, and was discharged ; but this was not done within the time prescribed in the condition ,of the bond, it having erroneously required this to be done within six instead of nine months.

The plaintiff’s counsel contends, that the debt has been discharged, and that the just measure of damages is the debt and interest ; and relies upon the cases cited as decided in Massachusetts.

This case differs from those in important particulars. It does not appear in those cases, that the debtor was destitute of property, or that any attempt was made to take the poor debtor’s oath. The ground of action in those cases, was that the debtor had escaped from the prison limits. In this case it does not appear, that the debtor had committed any escape from the prison liberties. The breach was occasioned by his neglect to surrender himself and go into prison within the time prescribed in the bond. The injury which the plaintiff has suffered arises out of such neglect to go into prison. And the true question respecting the damages is, what injury has the plaintiff suffered by not having the body in prison ? If the sheriff had neglected to arrest the debtor on the execution, and the action had been brought for such neglect, upon the facts in this cause, his damages eo.uld have been but nominal; and why should they be greater against the sureties on the bond for a like omission to have the debtor in prison ? The plaintiff in prosecuting this suit does not allege or prove any escape, and how then can he be said to have assented to any by bringing a suit upon the bond ? In pursuing a remedy, which the law gives him he cannot be regarded as impliedly assenting to any thing which he does not allege. It does not appear from the faGts in this case, that the debtor could allege and prove, that he had been released from arrest or imprisonment by the consent of the creditor express or implied ; and the right of the creditor therefore remains unimpaired to obtain his debt by any means, which the law may afford him. If the bond had been taken according to the provisions of the statute, that would-have determined the'amount of damages. Not having been so taken, it is a good bond at common law and subject to chancery. And this Court cannot say, that “ according to equity and good conscience,” the plaintiff is entitled to more than nominal damages. If a new trial should be granted, this Court must come to the same result, and pass a judgment like that which has been rendered; and it does not appear to have been the intention, that.a new trial shoulcj. be.granted for an error, which was not injurious to the party.

The counsel for the defendants abandons his exceptions, if the plaintiff’s are not sustained.

Exceptions overruled.