Doyen v. Leavitt

Emery, J. This is an action of debt on a bond given by Leavitt as principal, and by the other defendants as sureties, under B,. S., 1871, chap. 97, sec. 3. The defendants claim : 1st, to have discharged themselves from this bond by a surrender of Leavitt, the principal, in court before final judgment as provided by sec. 4, of chap. 97 ; 2nd, to have fulfilled the conditions of the bond. I. Section 4, provides that .the sureties on such a bond as this, may relieve themselves from liability by surrendering the principal "in court at any time before final judgment,” in the filiation proceedings. In this case the final judgment was rendered on the last day of the term. Even if its details were not finally settled in writing till afterward, the judgment must date of that last term day. It could not date of any later day. The principal in this bond had not been surrendered in court, prior to this last day. He was not present in court at the time of the passage of the order, nor at any time during its session on the last day. After the adjournment he went to the clerk’s office, and then gave himself up to the sheriff out of court, and went voluntarily into jail. This giving himself up to an officer out of court, and after final judgment and final adjournment,- was not a surrender of him "m court before final judgment.” There is no provision in this statute for a surrender to an officer, or to the jail, nor for any surrender after judgment. The surrender must be "in court” while it is in session, and before final judgment in the case. If the defendants wished to avail themselves of the statute mode of relief, without performing the [250] conditions of the bond, they should have seasonably and strictly complied with the statute. The memorandum, "respondent to be produced to-day,” could not vary the express language of the statute. The early and brief session of the court on the last day was no legal excuse for the failure to surrender. The principal was bound to take notice of the sittings and adjournments of the court, to follow the case through its various steps until final judgment was rendered in due course of law. He was bound to take notice of each step in the proceedings, and to attend personally when his personal attendance was by law necessary. Shaw, C. J., in Hodge v. Hodgdon, 8 Cush. 296, 297. The defendants did not relieve themselves by the statute surrender. II. Have the defendants complied with the conditions of the bond ? The meaning and requirements of the condition of such a bond as this, were fully considered by this court in Taylor v. Hughes, 3 Maine 433. It was there expressly held that the condition of such a bond was not fulfilled, unless the principal complied with the order of court for the maintenance and for the giving the statute security therefor. This construction was expressly affirmed by this court in Corson v. Tuttle, 19 Maine, 409. In this last case, the order in the filiation proceedings was, that the respondent stand committed till he complied with the order, and he was in fact committed by the court. The defendants in the suit on the bond claimed’ that such order and commitment discharged the original bond, but the court held that such was not the effect, and that the conditions of the bond still remained unfulfilled, and awarded judgment for the plaintiff. The two’ cases cited are decisive of this, for the defendants do not claim that the order of court was actually complied with, by payment and by giving security for future payments. We have examined the Massachusetts cases cited by defendants’ counsel, but see no reason for reversing the decisions of this court. It was the duty of the defendants to have the principal personally in court at the time of the order, to abide the order. If he was not there personally, it was a breach of the obligation to appear. If he was there, and did not comply with the order by paying the [251] money, or giving the required security, such failure was a breach of the obligation to abide. Shaw, C. J., in Hodge v. Hodgdon, 8 Cush. 297. The conditions of the bond were not performed. Judgment for plaintiff. Peters, C. J., Walton, Danforth, Libbey and Foster, JJ., concurred.