Wing v. Kennedy , 21 Me. 430 ( 1842 )

The opinion of the Court was drawn up by

Shepeey J.

—This suit is brought on a poor debtor’s bond, bearing date August 4, 1839 ; and it recites, that the defendant, William Kennedy, was then arrested on the execution in favor of the plaintiff against him. The officer’s return on the execution states the arrest to have been made on that day. It appears, that the part of the bond which was not printed, including the date and time of arrest, was written by the principal in the bond ; and that it was signed and sealed, when neither the officer, nor the creditor was present. And that this' was done on the fourth day of September following. The subscribing witness states “ that the surety in said bond, not having spectacles with him at the time of putting his signature to the bond, could not read it, but was told that if the principal should surrender himself within six months from that time, he would be saved tharmless.” There is nothing in this testimony to prove, that the bond was not antedated by the principal for the purpose of making it conform to an arrangement made with the officer, that he should obtain one bearing that date to correspond with the date of the arrest. And the fact, that he wrote it and inserted the date and the day of arrest corresponding thereto, is suited to impress the mind with the belief, that such was the case. And the proof, that the bond was executed on the fourth of September does not prove, that the debtor was not arrested on the fourth of August, and allowed to procure and present a bond as soon as opportunity would permit. The effect of proof that the bond was in fact executed on a day subsequent to the date, has been considered in the case of Cushman v. Waite, in the county of Penobscot, where it was shown, that the signers were in such case, for the purpose of making a computation of time, bound by the date of the bond and recital of the day of arrest.

The surety does not appear to have been misinformed respecting the date of the bond or the day of arrest, while he was so with respect to the legal effect of it. And there is no indication, that this was done with any fraudulent design. There is nothing in the testimony, which shows, that he was not truly informed both of the date of the bond, and the day of the alleged arrest of the debtor. And nothing therefore to relieve him from his obligation. The nonsuit is to be taken off, and the case is to stand for trial.