Fales v. Goodhue , 25 Me. 423 ( 1845 )

The opinion of the Court was drawn up by

Whitman C. J.

This is an action of debt upon a bond, with a condition, that if the defendant, Nathaniel Goodhue, should cite the plaintiffs, &c. or pay the debt, &c. or deliver himself to the keeper of the jail, &c. as prescribed in c. 148 of the Rev. Stat. then, &c. Obligors in such bonds, to avoid the penalty, are bound to comply with one of the alternatives contained in the condition, unless prevented by the obligee, or the law, or the act of God, from so doing. The defence is, that the principal, Nathaniel Goodhue, did cite the creditors and take the oath, as prescribed in said statute, and in the condition of the bond. This is denied by the plaintiffs.

The evidence is, that the defendant, Nathaniel Goodhue, did cite the creditors before two justices of the peace and of the quorum, in due season; but that no oath was administered to him till more than a month had elapsed, after the six months prescribed in the statute had expired. By a document furnished, as being the record of the justices, before whom the citation was returned, it appears, that they were duly constituted a tribunal, in accordance with the provisions of the statute, for the purpose of proceeding under the citation, on the 24th of October, 1843 ; and that, after proceeding in the business for some time, they adjourned to the next day ; when, after some further proceedings, they adjourned again to the 18th of November following; and, after some further proceedings at that time, they again adjourned to the 29th of that month, when they administered the oath, prescribed in the statute, to said Nathaniel. No reason is assigned in the record for either of the adjournments. If admissible, however, it appears, that parol evidence would show, that the second adjournment took place upon the motion of the counsel for the plaintiffs, the then creditors. But nothing of the kind is pretended in reference to the last adjournment.

In Longfellow v. Scammon, 21 Maine R. 108, it was held, that the oath prescribed, in order to a compliance with the statute, should be taken before the close of the six months next after the giving of the bond. In Moore v. Bond, 18 Maine R. 142, however, it was held that, if an adjournment of the justices took place at the request of the creditor till the next day after the six months had expired, it would not be allowable for him to object, that the oath was administered on that day. But though the creditor in this instance, should be precluded from objecting to the proceedings at an adjourned session, procured upon his motion, such could not be the case with regard to the subsequent adjournment, not so obtained or occasioned.

Again: the statute (§ 6 and 24) provides, that the justices may adjourn from time to time, but that “ no such adjournment or adjournments shall exceed three days, in the whole, exclusive of the Lord’s day.” If the justices go beyond this limit, thus peremptorily prescribed, their jurisdiction must become annulled. They constitute a tribunal of but a limited jurisdiction. Their powers are specially marked out to them by the law, by which they are conferred; and they should confine themselves to a strict observance of them. It is to be noted, that they may adjourn from time to time, but their adjournments are not to exceed three days in the whole, exclusive of the Lord’s day; not three days at each of several times, exclusive of the Lord’s day. The justices, however, in this case, disregarded the provision, whether it could be taken to be the one or the other; and so when the oath was taken it was coram non judice.

Judgment for the plaintiffs.