Horn v. Nason

The opinion of the Court was prepared by SnEpr-Eir J. This suit is upon a poor debtor’s bond. The case does not disclose any attempt to perform the condition. The bond had become forfeited before the principal filed his petition to bo declared a bankrupt. The rights of the plaintiff were fixed. A debt had become due to him upon it from both principal and surety. The subsequent discharge of one of his debtors by the proceedings in bankruptcy did not discharge the other or afiect his right to recover against him. The bond was not made in double the sum, for which the debtor was arrested or imprisoned as required by statute, c. 148, ■§> 20. Bonds not in conformity to the statute provisions made before the late revision of the statutes were not considered as authorized by any statute provision, and the rights of the parties to them could not therefore be considered as regulated by statute. Those rights were in all respects to be determined by the rules of the common law. In the late revision a new provision was introduced in c. 148, § 43, declaring, that a bond taken of a debtor under arrest or imprisonment by the officer shall bo valid, although the penalty from mistake, accident or misapprehension, shall exceed or fall short of the sutn required by law. This bond is therefore valid by virtue of that provision; and it would seem to follow, that the rights of the parties should be regulated by the statute. In addition to this it appears, that the bond was taken by virtue of the twentieth section, and the thirty-ninth section provides, that if the debtor fail to fulfil the condition of any such bond, that is, one taken by virtue of the twentieth section, the same shall be forfeited, and judgment in any suit on such bond shall be ren [104] dered for the amount of the execution and costs and fees of service, with interest on the same. It is said that this construction will operate as a repeal of the twentieth section so far as it determines the penal sum of the bond. This is not perceived. That provision will continue to be binding upon the debtor and the officer. A violation of it is only excused in case of mistake, accident, or misapprehension. The twentieth and the forty-third sections may well exist together, and the provisions of both have their appropriate and designed effect. The latter seems to have been intended to secure to the judgment creditor the same rights, to which he would have been entitled, if no such mistake, accident, or misapprehension had occurred. And such a provision may well be permitted to operate according to a literal interpretation of the statute, when the only effect is to prevent the obligors from taking advantage of any such mistake, accident, or misapprehension in which they have participated in making the bond. The plaintiff is entitled to judgment against Jacobs according to the provisions of the thirty-ninth section ; and Nason is entitled to a judgment in his favor with costs in this Court only.