White v. Estes , 44 Me. 21 ( 1857 )

Goodenow, J.

This is an action of debt on a poor debt- or's bond, dated June 10, 1854. Plea, the general issue and performance.

On the part of the defendants, Josiah S. Witherell testified, that he was keeper of the county jail at Norridgewock, in the county of Somerset, in November, 1854; that Talentine Estes delivered himself into his custody, as jailer, November 24, 1854; and went into close confinement, and so remained in jail, till the 8th of December, 1854, when he was discharged for non-payment of his board. Said Estes surrendered himself on the bond in suit, which, with the execution, were filed with said Witherell, as jailer, on said 24th of November, 1854.

The plaintiffs contend that the debtor having, before this surrender of himself to the custody of the keeper of the jail, attempted to disclose, and after proceeding more than three days in the examination and disclosure, having refused to complete the same, (the court having been legally organized,) and having disclosed a large amount of property liable to attachment, the plaintiffs thereby acquired vested rights under that proceeding; and having made his election, to submit himself to an examination within six months, according to the terms of the condition of the bond, could not abandon those proceedings, and relieve himself and his sureties on the bond, by delivering himself into the custody of the keeper of the jail, and going into close confinement, within six months from the date of said bond.

The bond declared on is subject to three conditions. The defendant must take care to perform one of them within six months, if he would protect himself and his sureties. Rollins v. Dow, 24 Maine R., 124; Fales v. Goodhue, 25 Maine R., 425.

If, after having delivered himself up to the jailer, and gone into close confinement, the defendant was discharged by the jailer, improperly, still the forfeiture is saved, and the plea of performance established.

The cases cited by the counsel for the plaintiff, are those in which the debtor endeavored to relieve himself by his disclosure, and failed to do so, on account of some irregularitics in tbe proceedings; and not cases in which he surrendered himself and went into close confinement, and therefore materially unlike the case at bar.

We are of opinion that a nonsuit must be entered,, and the defendants must have judgment for their costs.