Clark v. Metcalf , 38 Me. 122 ( 1854 )

Tenney, J.

—This is a review of an action of debt against Samuel Searle, the testator of the plaintiffs in review, on a bond given by him and one Benjamin Hilton as the sureties of Samuel H. Hilton, to obtain his release from arrest on an execution in favor of the intestate of the defendant in review.

The bond on which the original suit was brought makes a part of the case, and bears date March 13,1839 ; and by the condition thereof, it appears that the arrest was made on that day, upon an execution which issued on Oct. 5, 1838, upon a judgment rendered at the Supreme Judicial Court, which was begun and holden in and for the county of Somerset, on the last Tuesday of September, A. D. 1838, for the sum of $474,64, debt, and of $12,39, costs. It appears further, that the fees for one execution issued upon that judgment, and of the officer, who made the arrest, amounted to the additional sum of $8,34. The bond was taken for just double the amount of these several sums.

The statute of 1836, c. 250, which continued in force, till the general repealing Act, approved Oct. 22, 1840, took effect, and which was reenacted in the Revised Statutes, c. 115, § 107, provided that in all executions issued on judgments in civil actions, lawful interest should be collected on the debt, by the officer who should serve or levy the same, from the time of the rendition of the judgment.

When the bond in this case was given, the judgment had been standing for more than five months, and interest during that time had accumulated upon the debt of the same. Nothing in the case shows that any thing was paid., or that the officer was not required by the law and the execution, in the pei’formance of his duty, to collect the interest on the debt, as well as all the other sums, referred to in the execution. For the failure of the debtor to pay all these sums, including the interest, the debtor was arrested and gave a bond in a sum considerably less than double the amount of these sums, when, by the provisions of the statute of 1835, c. 195, § 8, it should have been for precisely that amount. The bond, therefore, was not a statute bond, but was valid at common law. Clapp, Adm’x, v. Cofran, 7 Mass. 98; Freeman v. Davis & al., 7 Mass. 200; Burroughs v. Lowder & al. 8 Mass. 373; Howard v. Brown, 21 Maine, 385; Barrows v. Bridge & al. 21 Maine, 398.

The case of Metcalf, Adm’r, v. Hilton, 26 Maine, 200, which was a petition for a writ of certiorari, to quash the proceedings of the justices of the peace and of the quorum, who administered the oath to the obligor in the bond now under consideration, and to save the condition thereof, is not an authority adverse to the views here expressed. In the proceedings under that petition, the bond does not appear to have been presented to the Court in any manner, and the opinion in that case is manifestly predicated upon the assumption that was not suggested to have been erroneous, that it was a statute bond. The question, whether it was according to statute provisions or not, was not considered, and consequently was not decided.

The bond, according to its condition, was to be void, if the debtor should in six months from the date thereof, cite the creditor before two justices of the peace, quorum unus, and submit himself to examination, and take the oath- or affirmation as prescribed in the seventh section of an Act supplementary to an Act for the relief of poor debtors, passed April 2,1836; or pay the debt, interest, costs and fees arising in said execution, or be delivered in custody of the keeper of the prison, &c.

It was at the election of the debtor, which of these three alternatives, mentioned in the condition of the bond, he would perform; and if he has performed the one attempted, no breach has occurred. And the case finds that the condition was performed of the alternative first named.

In support of the defence, a document was introduced as proof without objection, and makes a part of the case. No attempt was made in the argument of the case, to show that this document was not competent evidence, and it was not denied at any stage of the proceedings to be admissible. This purports to be signed by two justices of the peace and the quorum, and it is admitted on the part of the defendant in review, that they were, on the 3d day of August, 1839, duly commissioned and qualified. It is a certificate in the form prescribed by the statutes then in force, as evidence, that the debtor therein named, had properly taken the poor debtor’s oath, and all the facts therein recited is in this case legitimate evidence. This certificate by its terms shows, that on Aug. 3, 1839, all which was required by the first alternative named in the condition of the bond, had been done by the debtor, who was the principal obligor therein. Hathaway v. Crosby, 17 Maine, 448; Ware v. Jackson, 24 Maine, 166; Fales v Dow, 24 Maine, 211.

The bond having no validity as a statute bond, created no obligation in the debtor to comply with statutory provisions, further than the terms used in the condition provided. The condition had no reference to any statute, which might thereafter be enacted, but only to such as was then in force. He was to take the oath or affirmation, prescribed in the 1th § of the Act of 1836, expressly named. There could have been no condition, that he should do what was required of poor debtors by the statute of 1839, c. 412, where the bond was given ten days before the passage of that statute. The omission to have an appraisal of certain notes of hand, disclosed by him, agreeably to that Act, constituted no breach of the bond; and the evidence of those facts for such a purpose was not admissible.

This judgment of the justices of the peace and of the quorum, and their certificate, remain in force, and are effectual. The attempt to have the judgment annulled upon a writ of certiorari, proceeded no further than the order of the Court, that the writ might issue, for the purpose of bringing the records before it. No writ was issued. If the record had been brought before the Court, and the bond had been examined in connection therewith, it is not perceived for what error in the record or proceedings of the justices of the peace and of the quorum they could have been annul» led. The writ was allowed under the erroneous belief, that the bond conformed to the provisions of the statute, and the debtor had not complied with all the requirements of the statute of 1839, c. 412, approved March 23, 1839, in order to save the condition. The proceedings before the justices of the peace and of the quorum not having been quashed, they are to be regarded as valid, and the record stands in full force, and whatever order was made by the Court under the petition for the writ of certiorari, can in nowise prejudice the plaintiffs in review.

According to the agreement of the parties, the original plaintiff, now the defendant in review, is nonsuit in the original action upon the bond, and judgment to be entered for the plaintiffs in review for their costs, in the original action, and in the action of review.

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