
    Sheffield Smith v. James P. Burlingame & others.
    A mere agreement by the execution creditor, upon certain terms, to waive the performance of the condition of a bond for the prison limits, though made before breach, is no defence to an action on the bond for an escape, the terms not having been complied with, or offered to be complied with, by the execution debtor before suit brought upon the bond.
    Debt on bond given by the defendant, Burlingame, as principal, and the other defendants as his sureties, that Burlingame, then a prisoner for debt in the jail of the county of Providence, would remain a true prisoner within the limits of said jail, without committing any manner of escape or escapes, until he should be lawfully discharged.
    The declaration counted upon the bond as a single bond for the payment of $125. The plea, upon oyer craved and given, set out the condition of the bond, and averred that after the said writing obligatory was executed by the defendants, and “ before any manner of breach of the condition thereof had been committed by the said Burlingame,' he the said plaintiff, in consideration that the said Burlingame would not take advantage of the acts for the relief of poor persons imprisoned for debt, promised and agreed with the defendant to accept in full satisfaction, and discharge of all such sums as were due and owing from the said Burlingame to him, including the debt upon which he stood committed,” five several promissory notes, one payable at six, one at twelve, one at eighteen, one at twenty-four, and one at thirty months from date — four for $10 each, and the fifth for $15.78 — and each to be dated September 28, 1855, and averred, “that the said James P. Burlingame was always ready and willing, and still is ready and willing to deliver said notes so agreed to be taken to the plaintiff, and has them here in court ready to be delivered if he will accept the same. Whereupon they pray judgment, &c.”
    The action was brought by appeal from the court of common pleas for the county of Providence to this court, and was by agreement submitted to the court upon the sufficiency of the above plea, as well as upon the facts that might be proved in support or avoidance of the same.
    At the trial it appeared that while the defendant Burlingame stood committed, at the suit of the plaintiff, to the jail of Providence county, a prisoner upon the limits under the bond sued, and before breach of the condition of the bond, the plaintiff made with him the agreement set forth in the plea; but that Burlingame never delivered to the plaintiff the notes stipulated in execution of the agreement, nor offered to do so until after the commencement of this action, which was brought on the 13th day of November, 1855; nor did he, as required by law, within thirty days of his commitment return to close jail, nor make an assignment to the keeper of the jail for the benefit of his creditors.
    The case was argued by Lapham for the plaintiff,
    and by Thu/rskon for the defendants.
   Brayton, J.

The question submitted by the parties for our consideration is, whether the plea contains a sufficient defence to Burlingame for his non-performance of the condition of his bond to remain a true prisoner; and we think that it does not. His contract required of him to tender the stipulated notes to the plaintiff. This was the consideration of the plaintiff’s agreement to discharge the judgment debt; and unless Burlingame perform his part of the contract, he has no right to insist upon performance by the plaintiff. We see no pretence for the argument of his counsel that he was induced by the agreement of the plaintiff to neglect making his assignment or returning to close-prison, and so to become guilty of an escape which be would not otherwise have committed. The plaintiff had a right to expect the delivery of the notes, and it was Burlingame’s business to tender them. Had he done so they would no doubt have been accepted, and the bond discharged. It was at his option to give the notes, return to jail, or make an .assignment; and by his own neglect he did neither. When we look on the other side, and consider the condition of the plaintiff at the time of suit brought, we see that as he could not compel the making and delivery of the stipulated notes, if he be debarred of his suit on the bond by virtue of the agreement merely, he has lost all remedy. His bond being gone, he has no other security for his debt; and in such case, complaint of injury by being de: ceived and misled, would come with far better grace from him than from the defendant.

Judgment for the plaintiff.  