*35The opinion of the Court was, after a continuance, drawn up by
Siiepley J..The defendant, who was principal in this bond, taken pursuant to the act of February 9, 1822, for the relief of poor debtors, ch. 209, notified his creditor and proposed to take the poor debtor’s oath; but on account of being “ wholly deprived of his reason ” before the day appointed, he did not take the oath. Nor did lie surrender himself withiu nine months and three days; nor was he surrendered within that time by his bail, because he remained in the same condition of mental alienation until after that time. The defendants also offered to prove, that he was so destitute of property, that he was well entitled to take the oath. One cannot be excused for not taking the oath, by showing that he might have justly and legally taken it. Does his want of sanity afford an excuse for not fulfilling the condition of his bond ? That question arose in the Court of King’s Bench, in a case of bail, where a commission of lunacy had issued and the principal continued to be a lunatic; and the court intimated, that there could be no foundation for an exoneretur being entered on that account. Cock v. Bell, 13 East, 355.
The same question again arose in that court in a case of bail, where an attempt had been made to surrender the principal, and the keeper of the prison had refused to receive him because he had no place for the reception of a person of that description. It appeared also that the principal had become lunatic during his residence in the rules. Yet the exoneretur was refused. Anderson’s Bail, 2 Chitty’s Rep. 104.
There has not in this case been a performance, and the law does not regard such a misfortune, as a sufficient excuse.
Exceptions overruled.