Clement v. Wyman , 31 Me. 50 ( 1849 )

Shepley, C. J.

The suit is upon a poor debtor’s bond, made on December 31, 1847.

Judgment was recovered and execution issued thereon in favor of Cyrus Clement and Isaacus C. Smith, and the bond was made to them.

In defence, a certificate of two justices of the peace and of the quorum, made substantially in conformity to the form prescribed by the statute, was introduced, stating, that the debtor took the oath on May 28, 1848. That certificate recites correctly the date and amount of the execution and the court before which the judgment was recovered, and that the debtor “ hath caused Cyrus Clement and Isaac Smith of Boston, Commonwealth of Massachusetts, the creditors, by George W. Wilcox of Dixmont, in said county, then attorney of record, to be notified according to law.”

1. The first objection made by the plaintiff’s counsel is in substance, that there is no satisfactory proof, that the creditors were legally notified; and he refers to the case of Fales v. Dow, 24 Maine, 211, as a decision to that effect. That case was presented upon an agreed statement of facts. This'is presented upon such proof as may be legal. In that case the notice by the certificate appeared to have been served upon certain persons named as creditors. In this, it appears to have been served upon the attorney of record of the creditors. In that, it' appeared to have been served upon the wrong person. In this, it appears to have been served upon the right one. The certificate in this case states, that service of the citation was made upon the attorney of record of the creditors. Such a service was authorized by the twenty-third section of the statute. Is the statement, that it was thus correctly served, disproved or vitiated by another statement contained in the certificate, that Isaac Smith was one of the creditprs? It may be true, that Isaac Smith was not one of the creditors, and the statement, that he was, be wholly incorrect, and yet be true, that George W. Wilcox was the attorney of record of the creditors. The erroneous statement of the one fact is not inconsistent with a true statement of the other. There is therefore nothing in the certificate to destroy the effect of the statement, that the attorney of record of the creditors was notified according to Jaw. In the case of Fales v. Dow, the service appearing to have been made upon a person named, it did not appear to have been made upon a creditor, and the statement, that he was a creditor, could not make him one ; and the service could not be legal in that case, unless it had been made upon a creditor. So in this case the statement, that Isaac Smith was a creditor, does not make him one, but no service was made upon him or upon any improper person. On the contrary it was made as stated in the certificate upon the person, on whom the law authorized it to be made: It has often been decided in this State, that the certificate of tlie justices respecting the notice is conclusive, unless its effect be destroyed by an agreed statement of facts, or by a voluntary admission of illegal testimony. In the case of Slasson v. Brown, 20 Pick. 436, it was held not to be conclusive. And the court came to its conclusion by an examination of the preliminary proceedings. In that case, if the certificate had been regarded as conclusive, the court would have come to a different conclusion. The case can therefore be no authority in this State, where a different effect is given to the certificate of the justices.

2. The second objection is, that the certificate and record of the proceedings of the justices do not exhibit a compliance with the requirements of the twenty-seventh section of the statute. The provisions of that section are directory. The justices are not required to make a record of then compliance with its provisions ; and the form of their certificate is prescribed by the thirty-first section, and its effect by the thirty-second.

3. The third objection is, that all the choses in action were not appraised. And the demands left with George H. Gates for collection, and the contracts of Nathan Wyman and of Samuel McLellan to account to the debtor for the demands assigned to them are designated as those not appraised.

It appears, that the debtor’s interest in the demands left with Gates had been before assigned to Nathan Wyman; and the appraisal included all the debtor’s “ interest in certain choses in action and notes and accounts assigned to Nathan Wyman and Samuel McLellan.” The debtor’s interest in the demands left with Gates was therefore appraised.

The accountable receipts or contracts given to the debtor by Wyman and McLellan, determined the extent of the debt- or’s interest in the demands assigned to them, and his right to recover it. The appraisal of the debtor’s interest, as thus exhibited, necessarily carried with it his interest in those receipts or contracts; for by them alone would the interest of the creditors, as assignees, and their right to recover of the first assignees, be determined. The debtor could have no further or separate interest in them, after his interest in the demands had been appraised and assigned to the creditors.

The appraisal does therefore appear to have included all the debtor’s interest in the choses in action disclosed.

4. The fourth objection is, that the choses in action, which were appraised, were not set off to the creditors.

The persons selected to make the appraisement are required by the twenty-ninth section to “ appraise and set off such property, or enough of the same, to satisfy the amount of the debt, costs and charges.” If the creditor be absent, the debtor is required by the thirtieth section to “ deposit with the justices an assignment in writing to the creditor, of all the property thus appraised and set off.” It does not appear to have been intended, that the debtor’s interest should be transferred to the creditor by a set-off made by the appraisers, for ho is in all cases required to assign his interest. The only purpose of the set-off appears to be to designate the property to be assigned, when the debtor discloses more than sufficient to pay the creditor. When the whole of such property, as in the present case, is assigned, a formal set-off, made by the appraisers, could be of no importance. Its omission does not infringe upon the rights of the creditor, or prevent the administration of the oath.

5. The fifth objection is, that the justices did not “ give the creditor a certificate” of the real estate disclosed. The creditors in this case were not present, nor were they represented before the justices. It was not the intention of the Legislature to require them, by the provisions of the thirty-third section, to give such a certificate, unless some person authorized to receive it was present, or unless application was. subsequently made for it. Plaintiffs nonsuit.