Richards v. Morse , 36 Me. 240 ( 1853 )

Rice, J. —

This is debt on a bond given under the provisions of § 17, c. 148, by Joseph Morse, to the plaintiff, to procure his release from imprisonment, he having been arrested on mesne process in an action of crim. con. commenced against him by the plaintiff.

The defendant contends that this is not a statute bond, and that the action cannot be maintained; that he, having been arrested on mesne process in an action of tort, the only bond authorized by the statute is prescribed "by § 95, of c. 114, and should run to the sheriff, with the condition, that the defendant should appear and answer to the suit; and abide the final judgment thereon, and not avoid.

It is also contended that the 17th § of c. 148, applies only to cases of arrest in actions originating in contract, express or implied, and when the relation of debtor and creditor exists.

Technically, a tort feazor is not a debtor, so long as the claim against him is in right of action merely, nor is a party having a claim .against another, for a wrong done, a creditor, until that claim has been ascertained and the damages liquidated by a judgment. Before judgment, the relation of plaintiff and defendant exists, between parties thus situated, but not that of debtor and creditor. After judgment, and after the damages have thus been liquidated and determined, the defendant becomes the judgment debtor, and the plaintiff the judgment creditor.

By keeping these distinctions in view the application of the provisions of the statute become easy. In chapter 148, sections from two to eight, inclusive, the provisions relate to arrests on mesne process, in actions originating in contract, in which the relation of debtor and creditor exists. The debtor is therefore authorized to cite the creditor to hear him disclose, &c.

Section 9, authorizes arrests in actions not founded in contract and provides for a release by giving a bond to the sheriff according to provisions of § 95, c. 114.

Sections from 10 to 16, inclusive, provide for disclosure, &c., in cases where there has been no arrest.

Section 17, is as follows; whenever any person shall be arrested or imprisoned on mesne process, in any civil action, he may be also released from such arrest by giving bond to the plaintiff, with surety or sureties to the acceptance of the plaintiff, or approved by two justices of the peace and of the. quorum, of the county, where such arrest or imprisonment may be, in double the sum for which he is arrested or imprisoned ; conditioned that he will within fifteen days after the last day of the term of the court at which the judgment shall be rendered in such suit, or after the day of the rendition of judgment if before a justice of the peace, notify the judgment creditor,” &c., for purpose of disclosing.

These provisions, it will be observed, are broader and more comprehensive than those in the preceding sections, and apply to arrests on mesne process in all civil actions, whether originating in tort or contract'. Hence the bond is not to the a'editor, a term before judgment only applicable to actions in contract, but to the plaintiffs a term at all times, equally applicable, whether the action originate in contract or tort. Then, the condition of the bond is, to notify the judgment creditor, after the rendition of judgment, which applies as well to actions in tort as in contract.

From-these considerations, we think the bond is a statute bond and that judgment must be for amount of the execution, interest and costs.

Shepley, C. J., and Tenney, Appleton and Cutting, J. J., concurred.