Thomas v. Washburn , 24 Me. 225 ( 1844 )

The opinion of the Court was drawn up by

Tenney J.

The Rev. Stat. c. 114, <§> 18, have changed the remedy from scire facias to case, in claims against indorsers of writs, and have limited the time within which actions shall be commenced, to one year next after the judgment in the original action. But by the same section, the provisions therein contained are not to extend to any liability incurred before the passage of the Revised Statutes. This clause must have effect, notwithstanding the general provision in the second section of the repealing act, “ that the proceedings in every such case shall be conformed, when necessary, to the provisions of the Revised Statutes.” The liability was incurred, when the defendants indorsed the writ, though it had not then become fixed and absolute; and we think the Revised Statutes do not apply to this case.

The judgment against Irving was rendered July 3, 1840, and on the 21st Sept. 1840, a deputy sheriff of the county of Penobscot returned upon an execution issued thereon; “For want of property of the within named Irving, to be found within my precinct, to satisfy this execution, I have arrested his body and have discharged him from said arrest, upon his giving bond as is required by law.” It was the officer’s duty to make search for property, and from it, if found, to cause the execution to be satisfied, and his return is evidence, that he did all which was legally required of him; and as between the parties now before the Court, is conclusive, that no property of the plaintiff in the original action was to be found in his precinct. Craig v. Fessenden & al. 21 Maine R. 34. But it is not conclusive evidence of inability, as was decided in Palister v. Little, 6 Greenl. 350.

The liability of indorsers of writs depends upon the inability or avoidance of the debtor, and if it be shown that he was possessed of property, which it is reasonable to suppose could have been seized upon execution by the creditor, he exercising ordinary care and vigilance, in any other county in the State than the one to which the officer’s return refers, it would be a defence to an action against an indorser for want of ability in the debtor. But this liability is not fixed and made to depend upon the inability of the debtor at any precise time ; the provision is intended to give to the defendant in the original action security against the loss of costs, which he may recover in a suit against him, which shall prove tó be groundless. And it has received such a construction, that to hold an indorser, reasonable diligence shall be made use of to obtain satisfaction of the debtor, in the judgment, whose inability must be shown by an officer’s return upon an execution issued within one year from the rendition of the judgment. Wilson v. Chase, 20 Maine R. 385. There has been no laches of the plaintiff in this action in this respect. An execution was issued and a return of the arrest, and giving bond, made within three months from the time of rendering the judgment; and the ordinary means of obtaining satisfaction was in process.

The pffer of the defendants was to prove the ability of the debtor, from the time of judgment against him, till the time when the action was tried, by showing that he was the owner of personal property in the County of Penobscot, of two hundred dollars in value, and of real estate of great value, that he was the owner of other personal property in Penobscot County, from the time of said judgment until the 28th of August, 1840, of the value of four hundred dollars: “ that during all said period he was the owner in fee of real estate in a county adjoining Penobscot, in this State, of the value of three hundred dollars, on which the execution against him might have been levied and satisfied at any time.”

If the debtor did not hold this real estate longer than till the 28th of August, 1840, it was not evidence of such ability as would discharge the indorsers. There was no offer of proof, that the creditor was notified of the existence of any property belonging to the debtor, or that he, or his attorney, knew that he was the owner of the real estate last mentioned. It was not reasonable to expect, that without some information or knowledge of the fact, the creditor would abandon the course of proceeding, which he had adopted, speedily to obtain satisfaction.

But if the debtor was the owner of such real estate till the time of the trial of this action, he was unquestionably of ability to pay the judgment at the time, when this action was commenced. It is not entirely clear, whether the offer to prove, that the debtor was the owner of this real estate, refers to the whole time from the rendition of judgment to the trial of this action, or to the 28th of August, 1840. Upon a fair construction of the language, it may refer to the former, and if so, a successful attempt to make such proof would have been a defence. We think this opportunity should have been given, and by the agreement of parties, the action must stand for trial.