
    Brown vs. Houdlette & al.
    
    The slat, of 1821, eh. 62, sex. 11, which provides that certain actions shall be saved from the operation of the statute of limitations, where the action shall have been actually declared in before the expiration of the limit, but there was a failure of service of the writ through unavoidable accident, &c. was held not to apply to actions on bond or other specialty.
    
    In an action on a bond given for the liberty of the jail-yard, in which there was proof of two breaches at different periods, it was held that, the statute, ch. 209, by which such actions are limited to one year, commenced running at the time of the first breach ; the amount recoverable therefor, being the same as for both breaches.
    Debt on a bond given by the defendants to procure the liberties of the prison limits. The facts in the case were agreed, and in substance were as follows:
    
      Houdlette, one of the defendants,
    was legally committed to the jail in Wiscasset, May 25,1830, on an execution in favour of the plaintiff, and on the same day, gave bond in the usual form, to procure his release from close imprisonment, which bond, forms the basis of the present action.
    
      Houdlette being desirous of availing himself of the benefits of the act entitled “ an act for the relief of poor debtors,” on the 9th of Nov. 1830, made the usual application through the jailer, to a magistrate, for a citation to issue to the creditor, to attend the taking of the poor debtor’s oath by said Houdlette; — and on the same day, a citation issued which was as follows :
    “ Lincoln ss. — To Benj. Brown, Esq. Greeting.
    
      “ Whereas the foregoing application hath this day been made “ to me the subscriber, one of the ■ justices of the peace within “and for. said county of Lincoln — you are therefore hereby “ notified of the same, and that Monday the 29th day of No- “ vember, at eleven o’clock in the forenoon, is intended for the “ caption of the oath (or affirmation) allowed by the act therein “ referred to, when and where you will be present if you see “fit.
    “ Dresden upper bridge.
    
    “ Given under my hand and seal the ninth day of November, “ 1830. Wm. M. Boyd.”
    
    This citation was duly served upon the plaintiff, on the 13th of the same November, by the officer’s leaving a copy at his last and usual place of abode. At the timé mentioned in the citation, the agent of the creditor went to the Jailer’s office in Wiscasset, to resist said Houdlette’s attempt to take the oath, but he did not appear. At the time appointed, two justices of the peace quorum unus, administered to said Houdlette, on “ Dres- “ den upper bridge,” the oath required by law, and gave him a discharge; and as early as the middle of December following, he went without the exterior limits of the jail-yard, and was seen at Hallowell in the county of Kennebec.
    
    It was agreed that said Houdlette had not, within nine months and three days after the date of his bond, surrendered himself to the keeper of said jail and gone into close confinement, pursuant to the provisions of the statute aforesaid in certain cases; nor in any way had complied with the provision of said bond, except as aforesaid.
    
      On the 24th of Nov. 1831, the plaintiff commenced an action for the breach of the condition of said bond, making his writ returnable at the December term of the Court of Common Pleas for Kennebec. The plaintiff immediately sent his writ by mail to the sheriff of Lincoln for service, but failed to obtain it; — and on the 2d day of January, 1832, the writ having been returned by the officer without service, its date was altered to said 2d day of Jan. and made returnable at the April term then next.
    Judgment was to be rendered for the plaintiff or defendants as the opinion of the Court should be upon these facts.
    
      Sprague, for the defendants,
    contended, 1. that Houdlette was legally discharged on the 9th of November, and, 2. that if he was not legally discharged, the present action could not be maintained, not having been brought within a year from the time of the breach, agreeably to the requirements of stat. of Feb. 9, 1832.
    The designation of the place in the notice was sufficiently particular. If the creditor could understand what place was intended it was sufficient. Tuckerman v. Hartwell, 3 Greenl. 147. But, however that may be, the decision of the justices in regard to the notice, is conclusive.
    It was not necessary, that the oath should have been administered at the prison. Commonwealth v. Alden, 14 Mass. 388.
    
      Emmons, for the plaintiff.
    The conditions of this bond are, that the defendant should remain a true prisoner, and surrender himself within nine months — neither of which has he done. The plaintiff is therefore entitled to recover unless the defendant can protect himself under the transaction at Dresden bridge.
    
    The mode of procuring release from imprisonment, is a subject of statute regulation, and should be strictly pursued. The statute requires the place of caption to be inserted in the notice to the creditor. There was no such designation of place in this notice. The words, “ Dresden upper bridge,” were altogether too uncertain, even if the oath could be administered away from the jail. It was at an inclement season of the year and the creditor could not reasonably suppose that the oath was to be administered on a bridge. HasTcell v. Haven $f al. 3 Piclc. 404.
    The action was commenced early enough, it being at the next term of the Court after the accidental failure of service for a prior term. This was in strict compliance with the provisions of stat. of 1821, ch. 62.
   Mellen C. J.

delivered the opinion of the Court al the ensuing April term, in Cumberland.

This case presents two questions for our consideration : 1 st. Has the condition of the bond declared on, been violated. 2d. If so, is the action barred by the limitation contained in the 11th section of the act of 1822, ch. 209. — As to the first question, we would merely remark that the notice to the plaintiff of Houdlette’s intention to take the poor debtor’s oath, was incautiously made out by the justice as to the place appointed for administering the oath. Had the copy which was left with the plaintiff, been a fac simile of the original, partly printed and partly written, it might have been perfectly intelligible, at least much more so than it now appears to be; still we are unwilling to pronounce it so defective as not to have been understood. It is a nice point; and as it is not necessary, in the view we have taken of the cause, we avoid expressing ourselves more distinctly on the subject. We also avoid any indication of opinion, whether the question, as to the sufficiency of the notice, is an open one, or whether the certificate of the officiating justices is conclusive as to the legality of the notice ; because, after a careful examination, our opinion is, that the action is barred by tire statute before mentioned. The section of the act is in these words. “ That no action shall hereafter be maintained for the “ breach of any bond given or to be given for liberty of the jail-yard, unless such action be brought within one year from “ and after such breach.” — It is not pretended that Houdlette went without the limits of the jail-yard until after the oath was administered to him : namely about th'e middle of December, 1830, and the present action was commenced on the second day of January, 1832. But though a year had elapsed, next after the breach and before the suit was commenced, still it is contended that the action is not barred : and in support of his position, the plaintiff’s council relies on the eleventh section of the act of 1821, ch. 62, which provides, “ that any action which i: shall be actually declared in as aforesaid, and in which the “ writ purchased therefor shall fail of sufficient service or re- “ turn by any unavoidable accident, or by the default, negli- gence or defect of any officer to whom such writ shall be “ duly directed,” then the plaintiff may commence another action upon the same demand and shall thereby save the limitation thereof, provided such second action shall be commenced by declaring in the same and pursued at the next term, or within three months after the term of the court to which the former writ was returnable. The above provision was complied with, in respect to the time of commencing the present action. This Court had occasion to give particular attention to the above-mentioned section, and a construction of the proviso, in the case of Jewett v. Green, 8 Greenl. 447, to which we particularly refer. The 11th section refers to actions “ declared in as aforesaid.” These words carry our examination back to the 7th and 8th sections. In the 7th section the following actions are enumerated, namely, actions of trespass quare clausum fregit, actions, of trespass, detinue, trover or replevin for goods or cattle, actions of account and upon the case ; all actions of debt grounded upon any lending or contract without specialty, actions of debt for arrearages of rent, actions of assault, menace, battery, wounding and imprisonment. The 8th section, though for another purpose, mentions the same actions of the case or debt grounded upon any lending or contract, or for arrearages of rent. The 1st, 2d, 3d, 4th, 5th and 6th sections, relate exclusively to real actions, or to real property, and, of course, have no application to the present case, though the proviso is applicable to them. No part of the act of 1821, in any of its enactments, imposes a limitation upon actions on bond or other specialty; and therefore it would be a singular construction of the foregoing saving or proviso to apply it to such actions. As to such it would be superfluous and useless. Such an application, we are satisfied, could never have been intended by the Legislature. Besides; if such had been their intention, and that the benefits of the proviso or saving clause in the act of 1821, should be applied to actions on prison bonds or any other specialties, why was not a similar clause added to the 11th section of the act of 1822 ? and why was it not added to the last section of the act of 1821, limiting actions against sheriffs, for the misconduct or negligence of their deputies, to the term of four years after the cause of action ? We do not feel at liberty to introduce, by way of construction, so important a proviso in a subsequent statute, imposing a limitation in a special case, merely because such a proviso is found in the general statute of limitations, which never was intended to include, and never did include such special case. In the case at bar, it seems that the first action was commenced Nov. 24th, 1831, which was within one year next after the breach; but, for the reasons above assigned, we do not think that the commencement of that action and the failure of the service or return of the writ, have operated to save the plaintiff’s rights. But there is also another objection to the maintenance of the present action under the above provision. If the saving clause in the act of 1821 were applicable to a suit on a bond, the facts in relation to the subject, as agreed by the parties, have not brought the case within the terms of it. It does not appear that the writ in the former action failed of a sufficient service or return by unavoidable accident, or by the default, negligence, or defect of any officer to whom the same was directed for service. This should distinctly appear. The statement is, that the writ was sent by mail to the sheriff of Lincoln, whose residence we cannot but know is nearly forty miles from that of the defendants. The writ was dated Nov. 24, 1831. The court to which it was returnable, was held on the 13th of December next following. The writ, therefore, could not have been served legally for that term after the 29th of November. It is stated that the writ was immediately sent by mail. When the mail regularly left the post-office to which it was delivered, does not appear; nor what office it was, or what was meant by immediately; whether on the day the writ was made, or the next day. No fault in any officer appears; nor any unavoidable accident. It seems that the writ reached the sheriff, but the time when does not appear. If it reached him in due season for service, why have we not evidence of his negligence and default ? The total absence of all proof on this subject, leave us to draw the conclusion, that owing to the plaintiff’s delay in sending the writ to the officer it did not reach him in season for service; and is not the conclusion a fair one ?

■ But since the argument of the cause, it has been suggested to the Court, by one of the counsel for the plaintiff, that, for the maintenance of the action, he relies not only upon the breach of the condition of the bond committed by Houdlette, in leaving the county of Lincoln, and going to Ilallowell, in the county of Kennebec, as early as the middle of December, 1830, but also by his not surrendering himself to the jail-keeper, according to law ; that is, at the expiration of nine months, from the date of the bond, which was February 25, 1831 ; and that although the action may be barred by the limitation in the act of 1822, as to the first breach ; yet, as the present action was duly commenced on the 2d of January, 1832, which was within one year next after the 25th of February, 1831, the action is not barred. The above suggestion has led the Court to a careful examination of the distinction relied on (now, but not at the argument,) with a view of ascertaining whether, in a personal action, like the present, it reposes on any legal foundation. It is well known that our general statute of limitations, does not embrace bonds, or any instruments under seal: hence, no cases have been found, though we have made diligent search, which have a direct bearing upon the present question. We must therefore, in our investigation of the subject, in some measure, reason analogically and derive what light we can from cases supposed to resemble this. It may be affirmed with safety that, as the act of 1822, has subjected the bond in question to its operation, that operation should be in accordance with those principles which would govern the contract, provided it had not been under seal. Those principles seem to be well settled as to most points. “ It is a general maxim,” says Pothier, 431, (by Evans,) “ contra non valentem agere nulla currit prescript.io: “ and prescription only begins to run from the time when the “ creditor has a right to institute his demand.” As is observed by Mr. Angel, in his valuable treatise on the limitation of actions by the cases which have arisen under these statutes, it is well settled, that the statute does not begin to run or operate, from the time when a contract is actually made, unless a full and complete cause of action, instantly accrue thereon. In other words, the time limited is to be computed from the day upon which the plaintiff might have commenced an action for the recovery of his demand. These are undisputed principles of law, and are based on sound common sense. According to these principles, when Houdlette passed beyond the limits of the county of Lincoln and went into Hallowell, he violated the condition of the bond, and then the plaintiff had “ a full and com- píete cause of actionand then he “ might have commenced “ an action for the recovery of his demandand then also, according to the same principles, the statute began to run. And here it is important to observe, that nothing more can be recovered where both the conditions of such a bond are violated, than where only one of them is broken. In both cases there must be an entry of judgment for the whole penalty of the bond; and execution can never be issued for more than the original debt, costs and interest against the sureties; nor in such a case as this, could the court issue execution for more than the penalty and costs against the principal; so that immediately after the first breach, the plaintiff had a full, complete and perfect remedy on the bond, and a second breach could add nothing to his rights, or vary them in the least, unless he thereby acquired an option to rely on the second and waive all claims on account of the first; and this is the only question in this view of the cause. In almost every other case of an action of debt on bond, where, from the terms of the condition, there may be several breaches, and at successive times, though for any one breach there must be judgment for the whole penalty, yet the amount of damages to be assessed, must depend upon the number of breaches, and also upon the nature of them. For one breach the damages might be but trifling, while for another they might be large and important: as if a lessee covenants to pay rent quarterly, and also surrender the premises at the expiration of the lease, in as good order as they were at the commencement of it, and also pay all taxes assessed thereon, in one year from the time of the assessment; or, as in case of a conveyance of real estate and a covenant of seizin, and also a covenant of warranty, the first of which, if ever broken, is broken the moment it is made, but the latter not till eviction, or what is equivalent thereto. Other instances might be named by way of illustration. In such cases it will not be denied that each breach furnishes a new cause of action ; and where for one breach a judgment has been rendered for the penalty, the damages for subsequent breaches are to be obtained upon scire facias.

It is admitted, that where, by the terms of a covenant or the condition of a bond, several acts are to be done, of a distinct character, whether at the same time or at different times, the covenantee or obligee, may waive or release all right of action for any one breach of the covenant or condition, without prejudice to his rights in regard to others; but the legal consequence of such waiver or release necessarily is, that he thereby releases his right to all damages which he might have recovered for such breach, had there been no such waiver or release. Whenever, then, an obligee can by law recover for the first breach the same and as full damages as he could if every condition in the bond had been broken, it follows, that a waiver or release of the right of action for such breach must operate as a complete discharge of the bond. It is of importance to remember the above principle, and to distinguish the bond declared on from other bonds, in respect to the fixed amount of damages to be recovered, as we have before stated. In other cases, each breach is followed by its own particular damages : in this case, the first breach at once settles the full amount of damages, and no subsequent breach can enlarge those damages by any addition to them. If the plaintiff has waived or lost his right of action for the first breach, by suffering the statute of 1822 to bar it, it is equivalent to an express release. And now, why has not the statute barred all claim ? It would seem to be a correct position, that as soon as the plaintiff acquired a perfect and complete right of action, the defendants also at the same time, acquired an interest in the commencing protection of the statute, and in its legal consequences at the end of one year from that time, unless avoided on the part of the plaintiff by the commencement of an action during the statute year. Can the plaintiff be permitted to defeat and destroy this right in any other manner? The language of the 11th section of the act of 1822 is peculiar. It is, no action shall hereafter be maintained for ‘ the breach’ of any bond, given,” &c. But one breach is contemplated; because one is sufficient. If there are two, still the first gives a perfect right of action for all that can ever be recovered. We may further remark, that the con-' struction we have given to the act, as applied to such a bond, seems to harmonize with the evident intention of the Legislature, which must have been to hasten a creditor to assert his claim on the bond without delay, for the benefit of the sureties. The section is strong proof of this, as before it was enacted, there was no statute limitation whatever, affecting bonds of this description, or, indeed, of any other. As has been already observed, we have endeavoured in vain to find any case of contracts, where it has been decided that a creditor has the option contended for, so that he can waive the benefit of a right of action for a prior breach of a contract and rely upon a subsequent breach of the same contract, when all damages could have been recovered for the prior breach, which could be recovered for both breaches.

For the reasons assigned, a majority of the Court are of opinion that the action cannot be sustained, being barred by the limitation of the statute of 1822. Accordingly, a nonsuit must be entered.

Note. — Parris J. dissented.  