Ayer v. Fowler , 30 Me. 347 ( 1849 )

Howard, J.

— Fowler was arrested on execution, and gave the bond in suit, with the other defendants, as his sureties, under the provisions of the R. S. chap. 148, § 20. It was contended in defence, that he had complied with the first condition of the bond, by seasonably citing the creditor, submitting himself to examination, and duly taking the oath prescribed in the 28th section of the same chapter. He produced a certificate of two justices of the peace and of the quorum, in conformity with the provisions of the 31st section of that chapter and it was admitted without objection.

This certificate contained a statement of the manner of selecting the justices, or organizing the tribunal as follows : —

“We, the subscribers, two disinterested justices of the peace and of the quorum, in and for the county of Aroostook, selected in the manner provided by law, to wit, Thomas J. Hobart by the debtor, and the creditor failing to select, Mark Trafton by Charles W. Dority, a deputy sheriff of said county of Aroostook, hereby certify,” &c.

This certificate, unless invalidated, would constitute a bar to the action. Agry v. Betts & al., 12 Maine, 416; Granite Bank v. Treat, 18 Maine, 342.

The plaintiff offered in evidence, a paper purporting to be a copy of the original application of the debtor to Mark Trafton, as a justice of the peace, — of the citation to the creditor, by the justice, — the officer’s return of service of notice upon the creditor, — a certificate of the selection of Mark Trafton, as one of the justices to hear the disclosure, “ the creditor having failed to select,” all being upon the same paper, and each attested as a true copy, by “ Mark Trafton, justice of the peace.”

Trafton acted ministerially when he issued the citation; it formed no part of his records as a judicial officer, and a copy of it, and of the proceedings of others upon it, certified by him, could not be admitted as evidence.

The case of Knowles, 8 Maine, 71; Walf v. Washburn, 6 Cowen, 261; 1 Greenl. Ev. §, 498.

A paper alleged to be a copy of the disclosure of Fowler, taken by interrogatpries and answers in writing, signed by the two justices of the peace and of the quorum, and certified by “ Mark Trafton, justice of the peace and of the quorum,” as a true copy, was then offered, subject to objections.

The two magistrates, when duly selected for the purpose, constitute a tribunal of a judicial character, with powers and duties conferred and regulated by statute. They are empowered to examine and adjudicate upon the notification and return ; to examine the debtor on oath, concerning the state of his affairs, and his ability to pay the debt, — to administer oaths, and hear other legal and pertinent evidence, and to decide upon it; and if requested by the creditor, to cause the interrogatories to the debtor and his answers to be in writing, and subscribed and sworn to by him. “ The creditor may have a copy of the interrogatories and answers certified by the justices,” by paying for it. Both justices constitute the tribunal ; both may adjudicate and decide, but neither can do it separately from the other. So copies may be authenticated by both, but not by one of them. R. S. c. 148, § 24—32; United States v. Percheman, 7 Peters, 85.

A copy of the disclosure could not be admitted in evidence, if duly signed and certified by one of the magistrates only. But the paper now offered and under consideration, does not purport to be a copy of the interrogatories and answers signed and sworn to by the debtor, but only a copy of a copy of the interrogatories and answers certified by the magistrates. It would seem to be, at least, two removes from the original, and could not be received as evidence, if properly certified.

The testimony of Hall, Dority and Clark, if admitted, would not enable the plaintiff to maintain his action.

Plaintiff nonsuit.