Isaac M. Clark vs. Bailey K. Flagg & others, 11 Cush. 539

Dewey, J. 1.

In the argument of this case it was contended on the part of the defendants, that in computing the ninety days in which, by the terms of the bond, the surrender of the debtor was to be made, it was not competent to charge upon the parties a default as to such promise to surrender, by making a computation based upon the hour of the day of his original committal and that of his surrender, or in other words, to introduce into the computation fractions of a day, so that, if the debtor had been committed at 10 a. m. and had been surrendered at 2 p. m. of the ninetieth day, there would be a breach of the bond.

We entertain no doubts on this subject, and think the defendants’ view, excluding the fractions of the day, is the correct one. If the defendants had further satisfied us that any such ruling or instruction to the jury had been in fact given by the presiding judge, we should, have set aside the verdict. But upon a careful scrutiny of the bill of exceptions, we find no such ruling. It is true that evidence was admitted by the court, of the hour of the day at which the committal to prison occurred, and also the hour of the day at which the alleged surrender was made.

The object of this testimony is not stated in the bill of exceptions. As to the evidence concerning the hour of the alleged surrender of the debtor, it might have been competent evidence for the purposes suggested by the counsel for the plaintiff, as bearing upon the litigated question whether any surrender was made, and with a view of showing some facts controlling the evidence of the defendants tending to show the surrender of the debtor on the day alleged.

As to the evidence of the hour of the day on which the. origina". committal to prison took place, it is more difficult to see the purpose for which it could have been introduced. But it was at most only irrelevant, for aught that appears in the statement of the case and the proceedings on the trial before the jury. There is nothing in the bill of exceptions showing that any instructions were asked by either party as to computing the ninety days, by any reference to the fractions of a day, or the different hours of the day in which the committal and the surrender were alleged to have taken place.

The case does not appear to have been put to the jury upon that point, or under any instruction as to computing the ninety days. Indeed; the exceptions state that the evidence showed that the debtor never surrendered himself, according to the terms of the bond, but refused so to do. This is stated in the bill of exceptions, and must therefore be taken to be in accordance with the facts. There having been a refusal to surrender, and the debtor never having surrendered himself, the question to which we have alluded, that of regarding the fractions of a day, must, of course, have been immaterial.

If the real question submitted to the jury was, as is supposed by the counsel for the plaintiff, whether enough was done at any time to surrender the debtor to the custody of the jailer, that must explain the reason why no instructions were asked on the other point. However that may be, nothing is stated in the case showing any instructions or ruling to the effect that in computing the ninety days, within which the surrender was to be made, reference might be had to the hour of the day at which the committal took place, and the hour of the alleged surrender, or any effect given to fractions of a day. 2.

A further question was raised in this case upon the effect of a discharge of the debtor, the principal in the bond, in proceedings in insolvency under the St. of 1838, c. 163. It is said that the discharge of the principal, after breach of this bond, from all future liability thereon, is the discharge of his sureties also. But such is not the effect of the discharge of a principal under our insolvent law.

The statute just cited directly provides for this case, and enacts “ that no discharge of any debtor, under this act, shall release or discharge any person who may be liable for the same debt as a partner, joint contractor, indorser, surety, or otherwise, for or with the ’ debtor; ” St. 1838, c. 163, § 7. Exceptions overruled.