WOJCIECHOWSKI v. WILTOWSKI, 87 N.H. 41 (1934)


173 A. 380

ZENON WOJCIECHOWSKI, a. v. STANLEY WILTOWSKI, a.

Supreme Court of New Hampshire Sullivan.
Decided June 5, 1934.

In an action on a bond to take the poor debtor’s oath, no hearing having occurred before the justices, the surety’s surrender of the principal after the expiration of the statutory year is not a defence. The measure of damages in such action is prescribed by P.L., c. 347, s. 9.

DEBT, on bonds, to take the oath for the relief of poor debtors. Facts agreed. The year expired August 24, 1932. The principal obligors seasonably made application to the court, who appointed two justices. The justices declined to sit unless their fees were paid in advance or guaranteed. The applicants were unable at any time during the year to pay them so that no hearing was had, but this fact was unknown to the plaintiffs and the failure of the obligors to take the oath was in no part due to the plaintiff’s fault. The sureties gave no notice of intention to surrender the principal obligors on the

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day following the expiration of the year and did not so surrender them. This action was brought August 29, 1932. Service was made on all the defendants the same day. The next day the sureties notified the plaintiff’s counsel that they would surrender their principals at the house of correction on September 12, 1932. On this date at twelve o’clock noon the sureties surrendered their principals at the house of correction to the superintendent thereof, where they remained until three o’clock in the afternoon, when they were discharged by the superintendent.

The defendants contend (1) That their surrender of the principals as aforesaid is a defence; and (2) that the measure of damages is the loss the plaintiffs suffered because of the freedom of the principal obligors from the expiration of the bond to the date of surrender. The plaintiffs contend that the measure of damages includes the original costs and interest thereon and the expense of keeping the principal obligors while in jail.

Transferred without ruling by Sawyer, C.J.

Barton Andler (Mr. Andler orally), for the plaintiffs.

Henry N. Hurd (by brief and orally), for the defendants.

PER CURIAM.

The surrender came too late. The statutory limitation is imperative, and has been so declared in decisions which have been accepted without question for nearly a hundred years. Scovell v. Holbrook, 22 N.H. 269; Symonds v. Carleton, 43 N.H. 444, and cases cited; Head v. Clarke, 45 N.H. 287.

The measure of damages is fixed by statute. The plaintiff in a suit upon such a bond is to recover “his just debt or damages and costs thereof, with ten per cent interest from the time of the arrest, with costs.” P.L., c. 347, s. 9.

Case discharged.

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