Huntress v. Wheeler , 16 Me. 290 ( 1839 )

The opinion of the Court was prepared by

Shepley J.

The plaintiffs commenced their original suit against the defendant, Wheeler, on the 16th of April, 1833, upon a contract dated on the second of May, 1831, and recovered judgment at the June Term of this Court, 1836. On the 13th of July following, Wheeler was arrested upon the execution, which had issued, and was committed to prison ; and with the other defendant executed the bond now in suit to procure his discharge. The bond was taken according to the provisions of the eighth section of the act of 1835, c. 195. The defendants, at the January Term of the Court of Common Pleas, offered to be defaulted, according to the provisions of the act of 1835, c. 165, for the balance due upon the bond with interest. The plaintiffs claim the interest at the rate of twenty-five per cent, as allowed by the act of 1835. And the question submitted is, whether the bond should have been taken according to the provisions of the act of 1835, or according to those of the act of 1822.

The language of the eighth section of the act of 1835 is general, embracing all cases. The proviso in the seventeenth section is, “ that this act shall not be so construed as to affect any suit or suits already commenced, or rights vested under any of said acts.” The suit, upon which the judgment was recovered and execution issued, had been commenced before that time, and was not affected by its provisions. The question, whether the final process and proceedings were intended to be included in the term suit, was considered, and decided to be included, in the cases of Gooch v. Stephenson, 15 Maine R. 129 ; and Hastings v. Lane, ib. 134.

This bond cannot therefore be regarded as a good statute bond, and the plaintiffs can recover only the original debt, costs, and interest ; for which judgment is to be rendered; and for defendants for costs,