Marston v. Savage , 38 Me. 128 ( 1854 )

Tenney, J.

— A creditor upon contract, which creates an indebtedness to the amount of ten dollars, has the right upon mesne process, to arrest his debtor when the latter is about to depart and reside beyond the limits of this State, with property or means exceeding the sum required for his own immediate support. The proof of the facts necessary to the exercise of this right, is the oath of the creditor, his agent or attorney, that he has reason to believe, and does believe, that they exist. R. S., c. 148, § 2.

The right to give the bond, whether a bail bond or such as is required by § IT, and similar to the one in suit, is provided, that the debtor may be relieved from the arrest and imprisonment.

When the creditor has the legal power to hold his debtor in prison, if he fail to provide a bond, with no other evidence of his intention to take up his residence in another State, and of the amount of his means than his own oath, it cannot be supposed that tbe Legislature designed, that in a case, where no fraud was suggested, the obligors can avoid the bond, by showing that the debtor was not in fact about “to depart and reside beyond the limits of this State,” &c.

The arrest of the principal obligor in the bond, was made in pursuance of the provisions of law, and the action is maintainable, it not appearing that the conditions have been performed. Defendants defaulted— and to be heard in damages.

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