Battle v. Knapp , 60 N.H. 361 ( 1880 )

When a debtor who has been arrested on execution gives bond to the creditor to take what is commonly called the poor debtor's oath, two sufficient sureties are required (G. L., c. 240, ss. 1, 2); and "the sureties shall be deemed sufficient when they are approved in writing on the back of such bond, either by the creditor, his attorney in the action, or by two disinterested justices of the quorum of the county in which such person is arrested." Ib., s. 3.

It being conceded that the bond in question was not so approved, a material question then is, whether the plaintiff can now object to it for want of such approval; and we are clearly of opinion that he cannot. The provision as to approval is not a condition precedent to the validity of the bond, nor is it imperative; and being for the benefit and protection of the creditor solely, he may waive it, if he please, upon the familiar rule of construction, that statutory provisions for the benefit of individuals may be waived by those for whose benefit they are intended. And such waiver may be intentional or otherwise, for it is required of every one to take advantage of his rights at a proper time, and neglect to do so will ordinarily be regarded as a waiver. If, therefore, the bond was not satisfactory to the plaintiff, it was his duty to make known his dissatisfaction at the time when it came to his possession, or in any view, as soon thereafter as was reasonably practicable under the circumstances, and also to return it, or so offer, to the defendant. But he did exactly the contrary; for it is found that he took the bond without objection, still holds it, and has never offered even to return it. A case of gross neglect is thus presented, which long since constituted a waiver by the plaintiff of the statutory approval, and estopped him to deny the validity of the bond.

But the decision of the motion need not be put on the ground of waiver, for it being found that the sureties on the bond were sufficient, it is obvious that the plaintiff has not been damnified in any respect for want of the statutory approval. This fact of itself affords a sufficient reason for denying the motion, but it may properly be considered in connection with the additional fact, that the proposed amendment is not conformable to the truth.

Motion denied.

CLARK and ALLEN, JJ., did not sit: the others concurred.