Brett v. Murphy , 80 Me. 358 ( 1888 )

Emery, J.

This was an action of debt upon a bond given in bastardy proceedings under section 3, c. 97, R. S. The main question was whether the sureties had become discharged from the bond by a seasonable surrender of the principal in courts as provided in section 4.

In the original bastardy proceedings, the respondent had been found guilty by the jury. It does not appear that any motion or exceptions were interposed, or suggested, or that any delay was asked. The court, presumably without objection, on the same day made the adjudication and order contemplated in section 7.

This was the final judgment in that suit. Corson v. Dunlap, 80 Maine, 354. The case does not show that the principal rvas surrendered in court before that judgment was pronounced. He was surrendered on the same day, but presumably after the adjudication and order. This was too late. The sureties in such a bond, have a statute privilege of avoiding their bond by a surrender before judgment. To obtain this exemption, they must show affirmatively, a full compliance with the statute. They are not authorized to delay action until they learn what the judgment is, and then elect whether to satisfy it or surrendér their principal. The statute says, they must elect before judgment. If they wait till judgment is pronounced, they must see that it is satisfied, such being the obligation they voluntarily entered into. See cases cited in Corson v. Dunlap, supra.

The order of judgment for the penalty of the bond was correct. As the defendants however may wish to have the bond chancered, this may be done by the court rendering the judgment. This bond is not for the performance of any covenant, or agreement, and hence is not affected by sections 20, and 32, c. 82, R. S. It is a bond of defeasance. There is no covenant or agreement outside of, or apart from the bond itself. In such case, the breach is once for all, and the damages are sustained once for all. There having been a breach, all the damages, past, present and future are now due, and should be assessed at one time. Philbrook v. Burgess, 52 Maine, 271.

Evidence of the insolvency of the respondent cannot reduce these damages. The sureties covenanted under seal and for valid consideration, that the respondent in that suit should abide the order of court. He has not done so. The covenant of the sureties was not conditioned upon the respondent’s ability, but was absolute, unless they should relieve themselves by a surrender of the respondent before final judgment, which they have not done. Taylor v. Hughes, 3 Maine, 433 ; Corson v. Tuttle, 19 Maine, 409; Doyen v. Leavitt, 76 Maine, 247.

Exceptions overruled. Execution to stay till next term of superior court, to enable defendants to have damages assessed.

Walton, Daneorti-i, Virgin, Foster and Haskell, JJ., concurred.