Odiorne v. Quimby

Parker, C. J. The condition of the bond in this case, being in the form prescribed by the statute of 1833, is, that if the debtor, “ now a prisoner at the suit of,” [the plaintiff] “ shall within one year from the day of his arrest, the day of , A. D. , apply to the proper authority, and be admitted to take, and actually take, the oath or affirmation prescribed by the laws of this state for the relief of poor debtors, or in default thereof shall surrender himself up to the creditor, in the manner prescribed by the laws of this state, then this obligation to be void, or else to abide in full force and virtue.” The second section of the same act provides, “ That if any person, having given bond as aforesaid, shall not, within one year from the day of his arrest aforesaid, take the oath or affirmation prescribed by the law of this state for the relief of poor debtors, or be otherwise discharged, he shall, on the day next &fter the expiration of said year, unless the same be the Sabbath day, and in that case on the next succeeding Monday, surrender himself up to the keeper of the gaol, in the county where he was originally arrested or committed, and remain at said gaol from twelve o’clock at noon, till three o’clock in the afternoon on said day, so that the creditor may cause him to be again arrested on his said execution, or upon a new execution,” &c. The only question made by the counsel in this case is respecting the rule for the computation of the time within which the surrender may be made. In the case Bell vs. Adams, Grafton, July, 1839, (10 N. H. Rep. 181,) the [226] question was, whether the debtor took the oath within the time limited : and we were of opinion that, from the particular phraseology of the condition, the computation was to be regarded as made from the day of the date of the arrest. This construction was fortified by the provisions of the statute of January 13, 1837, where language similar in its effect is used, and where the legislature have enacted the rule for computation, by which the day is excluded. That ease settles the present. Excluding the day of the arrest, it is conceded that the debtor has complied with the terms of the condition, by surrendering himself on the day next after the expiration of the year. Judgment for the defendant.