Smith v. Burlingame Others , 4 R.I. 45 ( 1856 )

Brayton, J.

The question submitted by the parties for our consideration is, whether the plea contains a sufficient defence to Burlingame for his non-performance of the condition of his bond to remain a true prisoner; and we think that it does not. His contract required of him to tender the stipulated notes to the plaintiff. This was the consideration of the plaintiff’s agreement to discharge the judgment debt; and unless Burlingame perform his part of the contract, he has no right to insist upon performance by the plaintiff. We see no pretence for the argument of his counsel that he was induced by the agreement of the plaintiff to neglect making his assignment or returning to close-prison, and so to become guilty of an escape which be would not otherwise have committed. The plaintiff had a right to expect the delivery of the notes, and it was Burlingame’s business to tender them. Had he done so they would no doubt have been accepted, and the bond discharged. It was at his option to give the notes, return to jail, or make an .assignment; and by his own neglect he did neither. When we look on the other side, and consider the condition of the plaintiff at the time of suit brought, we see that as he could not compel the making and delivery of the stipulated notes, if he be debarred of his suit on the bond by virtue of the agreement merely, he has lost all remedy. His bond being gone, he has no other security for his debt; and in such case, complaint of injury by being de: ceived and misled, would come with far better grace from him than from the defendant.

Judgment for the plaintiff.