Collins v. Lambert , 30 Me. 185 ( 1849 )

Tenney, J.

— The debtor made disclosure that he had about twelve bushels of oats and peas, and was permitted to take the oath prescribed in R. S. chap. 148, § 28, and obtained the certificate according to the 31st section of the same chapter. Upon a demand made by the officer who had in his possession an alias execution issued upon the same judgment, for the property disclosed, the debtor delivered seven bushels and an half of oats and peas, and refused to deliver any more. In the trial of the action, upon the bond given by the debtor and his surety, it was permitted in defence to be proved, that at the time of the disclosure, the oats and peas referred to therein, were not threshed; that they were threshed afterwards, and the whole amount were delivered to the officer. This evidence was objected to, on the ground that it contradicted the disclosure, and added to the disclosure a new fact.

It is not understood that oats and peas are essentially changed by being threshed, though their condition is somewhat altered. In common parlance, they may be denominated oats and peas, although they may not be in a merchantable state. The debtor did not disclose that they were threshed, or in a condition to be treated as a marketable commodity; and from the mode of expression in reference to the estimated amount, it is to be inferred that the quantity was uncertain. The evidence objected to, but allowed, does not contradict the disclosure or necessarily add any new fact.

The purpose of the law is to give to the creditor the benefit of attachable property, which may be disclosed by the debtor; and if through the fault of the latter the former is deprived of his just rights therein, the bond may still be broken, notwithstanding the oath may be taken, within the time prescribed to save the forfeiture, and a certificate, that the oath was so taken, obtained. But if all the property disclosed is delivered in good faith, upon a proper demand, in a condition to be available as much as when the disclosure was made, it is sufficient, and the condition of the bond is saved.

Exceptions overruled.