majority">Gilchrist, J.

At the date of the note, for the conversion of which this action was brought, Buekman was a prisoner of the deputy sheriff, Blodgett, who had arrested him at the suit of Proctor & Kendall. In consequence of giving this note by the plaintiff, the officer, whether with or without the instruction of the creditors, or their attorney Snow, it is not material to inquire, suffered his prisoner to escape. This would have been a good consideration for the note without any condition annexed to it, for the benefit which is presumed to be gained by the arrest of the debtor was parted with.

The plaintiff, however, in giving the note reserved to himself the benefit of a condition, the performance of which, according to its strict terms, would clearly have exempted him from further liability in respect to the note. Has he performed the act required by the condition ? Clearly he has not; for, instead of producing Buekman at the time prescribed by the terms of it, he did not produce him till forty minutes later. But it is said that he produced him in sufficient time for the sheriff to have taken him, and to have secured to Proctor & Kendall every advantage which they could have derived from an earlier surrender.

But this is wholly immaterial; for, in the first place, the authority of the officer to arrest the prisoner, whom he has voluntarily permitted to escape, may admit of very serious question. Shurburn v. Beattie, decided lately in Grafton. So that no benefit was probably secured to the creditors by the tardy attempt to comply with the condition.

*486And, secondly, if the condition were intended to secure a benefit to the creditors, they had a right to exact it in the terms and to the extent in which it had been secured to them by the contract. The case is not one in which the court can answer the objection or commute the penalty.

The condition annexed to the note was introduced for the benefit of the maker of it. Apparently its performance could have been of no use whatever to the payees. It was inserted to enable the maker, by complying with its terms, to avoid the payment of the note, if he saw fit so to do. It is not suggested that the performance was impossible or difficult. It was the same thing substantially as if the condition to avoid the note had been to give notice before a certain hour. Notice after the hour would have been no performance unless assented to. Gray v. Gardner, 17 Mass. 188.

Whether a note that is paid ordinarily belongs to the party paying it, and may be claimed by him, does not fairly come in question here; since the condition provides that it shall be delivered up to the maker .upon the performance of the condition. It would have been the plaintiff’s property if he had kept the condition, which, as the case now stands, it clearly appears he did not.

The verdict must be set aside, and a

New trial granted.

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