Kelly v. Stepney

The opinion of the Court was delivered by Gibson, C. J. —No act of an obligor can exonerate him, but performance of his bond ; and the question is,- whether the surrender of the principal before the day of appearance, was performance of it. The condition of an insolvent’s bond is, that, he appear at the next court of common pleas for the county, and “then and there” take the benefit of the insolvent laws, or surrender himself to jail, failing to comply with the requirements necessary to be observed in order to be discharged ; and generally that he abide the order of the court. The surrender thus indicated, is evidently not to be before hearing: and performance before the time is no better in contemplation of law, than no performance at all. Payment before the day is not a plea to a bond, because it stands not within the terms of the condition; and that it may be given in evidence under solvit ad diem, is by force of the 4 Anne, c. 16, which makes payment at any time before suit brought, a defence at law. But it is supposed that there is something inherent in the relation which entitles bail to an exonerelur having surrendered the principal at any time before they are fixed. The recognizance of special bail has indeed that peculiarity. Being moulded by practice into a contract of indemnity, the bail who have become keepers of the principal by the delivery of his person to them, as the name imports, are relievable from their undertaking by restoring the plaintiff to the advantages he would have had if the defendant had remained in prison. But there is no discretionary power, any where, to relieve against the contract of one whose responsibility has been incurred, not by an engagement to the court attended with peculiar incidents, but by an obligation on conditions prescribed by a statute; in which the party who undertakes for performance by the principal, is but a surety, and not bail in the proper sense of the word. The condition of a bail bond to the sheriff, would require performance as strictly as does the condition of any other obligation, did not the 4 Anne, c. 16, sect. 20, authorize the court to give such relief by a rule “in the nature and effect of a defeasance,” as justice and reason may require—a provision engrafted on our act of 1772, ,in order to enable the courts to grant the like relief against the forfeiture of a replevin bond. Now that bail to the sheriff, as they are improperly called, are not keepers of the defendant’s person, is proved by the means to which they resort to put off their responsibility; they become special bail to perform the condition of their bond, and they surrender him on the new authority of a bail piece to perform the condition of their recognizance—a circuity which would be superfluous if they might surrender him directly in performance of the bond. But were the surety even the keeper of his insolvent principal, it would seldom be in his power to restore the parties to [71] their original footing; as at least a part of the object of a commitment in execution would be frustrated. The purpose of it being satisfaction, and not security for the debtor’s appearance at a day certain, he would gain an advantage by the temporary liberation of his person, which is certainly not the end designed to be accomplished by the proceeding, and for which the debtor would be without compensation. The same advantage is doubtless gained by him when remanded on hearing; but that it is so, is a defect inherent in the nature of the proceeding, and not an object of it. To suffer the surety, therefore, to exonerate himself by a surrender before the day of appearance, would be inconsistent with not only the terms but the nature of the contract. Judgment affirmed.