Winsor v. Clark , 36 Me. 110 ( 1853 )

Howard, J. —

The statute of 1848, c. 85, was intended to provide for poor debtor’s relief which prior legislation had failed to furnish. And it has been repeatedly held, since the passage of that Act, that when a debtor, having given bond to obtain his release from arrest on mesne process, or on execution, or warrant of distress for taxes, has taken the prescribed oath before two justices of the peace and of the quorum, the damages in a suit upon the bond, are to be assessed by the Court or jury, according to the provisions of that Act, (§ 2,) although the magistrates had no jurisdiction for the purposes of the disclosure intended. In such cases, “ the amount assessed shall be the real and actual damage and no more.” Bard v. Wood, 30 Maine, 155; Baker v. Carleton, 32 Maine, 335; Hathaway v. Stone, 33 Maine, 500, and other cases not reported.

This construction of the statute is conformable to the language of the Act, and, as it is believed, consonant with the will of the legislature. Though, perhaps, the construction might have been different, without doing very great violence to the terms of the Act, or to what might be assumed as the intention of the legislators; yet, the construction given has been acted upon by judicial tribunals, and parties, and known as a part of the present law of the State, and we do not think it advisable to change it, if we had the disposition and the power, for any reasons of public policy, or private right, which have been suggested, or which now occur to us.

The debtor, in this case, had taken the oath prescribed by law, before magistrates competent to administer it, though incompetent to take his disclosure, so as to save a breach of his bond, and as there was no imputation of fraud, he was entitled to have the damages assessed under the Act of 1848, c. 85, § 2. Exceptions sustained, verdict set aside, and the action to stand for trial.

Tenney, Appleton, Hathaway and Cutting, J. J., concurred.