Herring v. Sanger.

The ground, upon which the American doctrine is placed, is, that the acceptor or maker is the promissory debtor, and the debt is not as to him discharged by the omission or neglect to demand payment, when the debt became due, at the place where it was payable. Assuming this to be true, it by no means follows, that the acceptor or maker is in default, until a demand of payment has been made at the place of payment; for the terms of his contract import an express condition, that he will pay upon due presentment, at that place, and not that he will pay upon demand elsewhere; and the omission or neglect of duty, on the part of the holder, to make preseutment at that place, ought not to change the nature or character of the obligations of the acceptor or maker. Now the right to bring an action presupposes a default on the part of the acceptor or maker; and it may, after all, make a great difference to him, not only in point of convenience, but in point of loss by exchange, as well as of expense, whether, if he agrees to pay the money in Mobile, or in New Orleans, he may be required, without any default on his own part, notwithstanding he has funds there, to pay the same money in New York or in Boston. He may well say; Non in hæc fœdera veni.

But, although the English and American authorities are not in harmony with each other on the question, whether a presentment and demand of payment should be made at the bank, or other place, where a promissory note or a bill of exchange is made payable, before an action can be brought thereon against the maker or acceptor; yet they are entirely in coincidence with each other on the point, that it is indispensable, in order to charge the indorser or the drawer, that a presentment for payment should be made not only at the place, but also on the very day of the maturity of the note or bill, otherwise the indorser or drawer will be absolutely discharged. (Chitty on Bills, ch. 5, p. 172, 173, (8th edit.;) Id. ch. 7, p. 321-323; Id ch. 9, p. 331-400; Bayley on Bills, ch. 1. § 9, p. 29, 30 (5th edit. ;) Id. ch. 7, § 1, p. 219-223; Gibb v. Mather, 2 Cromp. & Jerv. R. 254; S. C. 8 Bing. R. 214. United States Bank v. Smith, 11 Wheat. R. 174. Wallace v. M'Connell, 13 Peters, R. 136. Woodbridge v. Brigham, 13 Mass. R. 556. Thomson on Bills, ch. 6, § 2, p. 420-424 (2d edit) Shaw v. Reed, 12 Pick. R. 132. North Bank v. Abbot, 13 Pick. R. 465.") The reason is, that the undertaking of the indorser and drawer is conditional, and consequently, unless there be a strict compliance with the condition, no right can attach against the indorser, or the drawer. (See also 228, n. 1.; Bayley on Bills, 157, 158, 159.)

Holmes v. Lansing.

HOLMES and another against LANSING, Sheriff, &c.

In an action against a sheriff for an escape, if it be averred, or found on the record, that the sheriff permitted the prisoner to escape, it is equivalent to a finding of a voluntary escape.

The prohibition in the 10th section of the first article of the constitution of the United States, does not extend to the municipal regulations of the present states, which modify the process and proceedings relative to the recovery of debts, as establishing jail liberties, &c.

The act, (sess. 24, c. 91,) as to jail liberties, is imperative on the sheriff, who is bound to grant the liberties to the prisoner on his tendering a sufficient bond; but as this bond is intended only for the sheriff's indemnity, he may waive it, and grant the liberties, without taking the bond; and he will not therefore, be liable for an escape.

THIS was an action against the defendant, as sheriff, of the city and county of New York, for an escape.

It was found, by the special verdict, that the defendant, as sheriff of New York, did, "without any compensation or promise therefor, permit John Evers, who was charged in execution at the suit of the plaintiffs, to go at large without the walls of the prison, but within the limits of the liberties thereof, and that he so permitted him, at sundry times, in the months of September, October, and November, 1793. That he took no bond from the said John Evers, as is men. tioned or required in the act for regulating the liberties of jails. That the said John Evers voluntarily returned with. in the walls, before the commencement of the suit against the defendant, which was on the 18th February, 1799." The question was, whether the defendant was responsible to the plaintiff's as for an escape?

[*74]

*KENT, J. delivered the opinion of the court. 1. If it is found, that the sheriff permitted a person to go at large, it is equivalent to finding that he voluntarily suffered him. The distinction that runs through all the books is between voluntary and negligent escapes, and not between voluntary and permissive escapes. In the case of Vintner v. Allen, (Carter, 212,) there was a scire facias brought on a

Holmes v. Lansing.

judgment, and the defendant pleaded that he was in prison, in custody of the warden of the Fleet, and that the warden. permisit illum ire ad largum. On demurrer to this plea, and argument, it was contended on one side, that by permis· sion must be understood negligent, and on the other side, that it must be understood voluntary. Two of the judges appeared, in the first instance, to differ on the import of the word permisit, but, at last, the court concluded it to be a plea of a voluntary escape, and decided upon it as such. In the case of Philips v. Stone, (2 Leon. 118,) the court said, if a prisoner, being in execution, escape with the permission of the jailer, the execution is utterly extinguished, and the prisoner discharged, which was only, at common law, in cases of voluntary escapes. So in the case of Whiting v. Sir G. Reynal, (Cro. Jac. 657,) which was an action of debt against the marshal for an escape, the declaration stated that he suffered the prisoner to go at large, and the court held this equivalent to a voluntary permission.

It might be easy to multiply cases, where the word voluntary has been used, but those I have referred to, and the general language of all the books, are sufficient to show, that if it be averred or found, on the record, that the sheriff permitted a man to escape, the court must understand it to be an escape by consent.(a)

2. I have no doubt, that that the act of the 5th April, 1798, (Rev. Laws, vol. 1. p. 350, sess. 24, c. 91,) regulating the liberties of jails was a valid act and not within the prohibition of the constitution of the United States, that no state should pass laws impairing the obligation of con- [75] tracts. This law was not intended to impair the remedy of the creditor, by confinement of the debtor's body. We need not give any opinion, whether taking away the remedy by a ca. sa. on pre-existent contracts, would infringe the provision in the constitution, since that question does not arise on this act. It is only a regulation concerning the jails, and rendering them more convenient and healthy.

(a) Graham's Prac. 3d. ed. vol. 1, p. 536, et seq.

Holmes v. Lansing.

That general

The remedy still exists, in force and effect. prohibition cannot be understood to apply to all the detail of municipal regulations, rendering more easy, or less inconvenient, the process and proceedings for the recovery of debts. The manner of arresting and holding to bail; the proceedings in a suit to judgment; the time and mode of taking out execution; the regulation of sales on execution; the discharge of persons in execution, after 30 days or after 3 months, on terms; the establishment and regulation of the liberties of jails, are provisions, which have most of them been made or amended since the the constitution of the United States; and are all, more or less, liable to the same objection. The constitution could not have an eye to such details, so long as contracts were submitted, without legislative interference, to the ordinary and regular course of justice, and the existing remedies were preserved in substance, and with integrity.(b)

(b) In Mason v. Haile, (12 Wheaton, 370, 378,) Mr. Justice Thompson who delivered the prevailing opinion, said, “Can it be doubted but the legislatures of the States, so far as relates to their own process, have a right to abolish imprisonment for debt altogether, and that such a law might extend to present, as well as future imprisonment? We are not aware that such a power in the States has ever been questioned. And If such a general law would be valid under the constitution of the United States, where is the prohibition to be found, that denies to the State of Rhode Island, the right of applying the same remedy to individual cases? This is a measure which must be regulated by the views of policy and expediency entertained by the State legislatures. Such laws act merely upon the remedy, and that in part only. They do not take away the entire remedy, but only so far as imprisonment forms a part of such remedy. The doctrine of this Court in the case of Sturges v. Crowninshield, (4 Wheat. Rep. 200,) applies with full force to the present case. Imprisonment of the debtor,' say the Court, may be a punishment for not performing his contract, or may be allowed as a mean for inducing him to perform it. But a State may refuse to inflict this punishment, or may withhold it altogether, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner, does not impair its obligation." In Reed v. Fullum, (2 Pickering R. 158,) it was held that a bond for the debtors' liberties restrains the debtor within the liberties established by law for the time being. And it was held, that the statute of the 10th of February, 1823, narrowing the liberties in Suffolk after the 15th of May following, was not unconstitutional as applied to a bond given before

Holmes v. Lansing.

4

As to the interpretation of this act, I remain of the opinion which was given by the late Ch. J. in the case of Dole, Sheriff, &c. v. Moulton and others, (2 Johns. Cases, 205,) that on tender of the bond prescribed, it was made the sheriff's duty to grant the prisoner the liberties; that the words. "shall permit," &c. " provided," &c. are imperative, on the condition being performed, and that by the sound construction of the act, the bonds to be taken were only for the sheriff's indemnity. If this be the true construction of the act, it must follow, that the sheriff might waive his indemnity, and grant the liberties without such bond. The jails were to be considered as *enlarged from the [*76] four walls of the ancient law, to the assigned limits;

and so long as the prisoner was within those limits, so long was he to be considered, in judgment of law, as in prison. The act of 30th March, 1799, has put this construction beyond doubt, by a declaratory section.

The court are, therefore, of opinion, that judgment must be for defendant.

Judgment for the defendant.(c)

the passing of the act, but that the principal in such bond, having after the 15th of May made use of the liberties in their former extent, was guilty of an escape. (See also Walter v. Bacon, 8 Mass. R. 468; Gray v. Munroe, 1 M'Lean, 528; Woodfin v. Hooper, 4 Humphrey, 13; Fisher v. Lucky, 6 Blackford, 373. Story's Comm. on the Const. vol. 3, p. 251, § 1379; Fitch v. Badger, 1 Root, 72.

(c) [Old note.] See 4 Johns. Rep. 45. 5 Johns. Rep. 89, 182. 6 Johns. Rep. 121. 7 Johns. Rep. 165, 168, 175, 289.