Pindar v. Upton , 44 N.H. 358 ( 1860 )

Bell, C. J.

The authorities collated with much industry by the counsel for the plaintiff satisfactorily show that obligations taken from a person in the custody of a sheriff are not invalid, or illegal as taken for ease and favor, unless they are made to himself. If an obligation is taken to the creditor, and is voluntarily offered by the prisoner, it will be held valid at common law; but if it is extorted by duress, or any abuse of legal process, and imposes conditions more onerous than those imposed by the statute, it maybe avoided,- and where such an obligation is forbidden by statute it is void.

The bond in suit here is such a voluntary bond. No statute declares it to be void, or forbids it to be taken. No duress or abuse of process is suggested. It may well be held a valid bond at common law.

At first look the condition of this bond seems impossible, because, in the condition of the plaintiff’s case, when it was taken, it was not in the power of the obligor to apply to the proper authority and be admitted to take and actually take the oath or affirmation prescribed by law for the relief of poor debtors, since no tribunal had any jurisdiction or proper authority to administer such oath to any person but one taken in execution, or who had been taken in execution, and had been discharged on giving bond like that given in this case ; and here no judgment had been rendered, and no execution had issued, and the obligor had been arrested on mesne process only. For a like reason it was not in the obligor’s power to surrender himself to prison, in conformity to any law, since there is no law applicable to such a case. If this impression was correct the bond must be regarded as single, and the whole amount of the penalty recoverable, since an impossible condition is regarded as none, and the bond therefore unconditional. Touchstone 138 ; Co. Litt. 206, a, b; Com. Dig., Condition, D, 1. It was, nevertheless, in the power of the obligor to perform one alternative of this condition, by the aid of the obligee, and that is sufficient to prevent its being regarded as impossible.

If the obligor had allowed judgment to be rendered against him, and an execution to issue, he might have been surrendered to the officer in charge of the execution, and have given a new bond, and then, within the year prescribed by this bond, he might have taken the poor debtor’s oath, though he could not have surrendered himself at the jail, since that could only be done on the day next after the expiration of the year. If there are two conditions in the alternative, one of which is, at the execution of the bond, impossible, the condition of the bond will be broken, if the other is not performed, or its performance is not prevented by some valid reason. Laughter’s Case, 5 Co. 22.

It is apparent that the condition to take the poor debtors’ oath, though possible, could not be performed without the assent and concurrence of the plaintiff'. No judgment could be rendered, no execution could issue without his agency; the execution could not be placed in an officer’s hands, nor any service made upon it, but by his direction. Now it is a settled principle, that wherever, by the terms or by the nature of a condition, it can not be performed without the precedent, or concurrent act of the obligee, and he neglects or refuses to perform such act, the condition is saved. Com. Dig., Cond., I, 6, 7; Bac. Ab., Cond., 23; Co. Litt. 206, b; 210, b; Touch. 380, 1; Vin. Ab., Cond., N, c; 2 Cruise Dig. 33; United States v. Arredondo, 6 Pet. 691; Whitney v. Spencer, 4 Cow. 39.

The action of Pindar v. Upton was continued, as the case finds, at the request of the defendant,, to the April term, 1862, which commenced April 15, and the year limited in the bond expired April 18. It was consequently impossible that the execution should be issued, and served, and notice given, so that the oath could be taken on or before the 18th. The last continuance of the action then prevented the oath from being taken, or rather rendered it impracticable to take it. If the plaintiff assented to that continuance, the condition of the bond is not broken. Upon this point the case shows nothing definite, and nothing can be decided. If the plaintiff did not assent, and the defendant obtained the continuance against his objection, the obligor has disabled himself to perform, the condition, and is chargeable with the breach of it.

The plaintiff claims that he is entitled to recover the amount of his debt and interest, as damages, if there has been a breach of the condition; and he ought clearly to do so, if he has been injured to that amount. But there is no evidence of such loss, or of any specific damage. For all that appears, the* defendant is as well able to pay his debt as when the bond was taken, in which case the only injury is the loss occasioned by the delay; or he may have been then and still entirely insolvent, and the damages nominal.

Ouse discharged.