Remick v. Brown , 32 Me. 458 ( 1851 )

Wells, J.,

orally.

It is well settled that a debtor, having an interest in a chose in action, must cause it to be appraised, before he is entitled to an administration of the oath.

The oath taken in this case by the debtor being unauthorized, there was a breach of the bond. By the R. S. chap. 148, sect. 39, the obligee in the bond was, in such cases, entitled to recover the full amount of the execution. But that rule has been changed by the Act of 1848, which provides, that, if the oath was in fact taken before a breach, the creditor can recover but the actual damage. In this case, the oath was taken within the six months, and before any breach.

The debtor discloses notes against Dudley and Babcock and some other notes, and at the conclusion of the disclosure asserts that he had assigned all his demands to McDonald. And McDonald testifies that all the property and demands assigned to him were not sufficient for his security. There was therefore, in the notes, nothing of value remaining in the debtor, and the non-appraisal of them could be of no injury to the creditor, who appears to have suffered no actual damage by the breach of the bond. Plaintiff nonsuit.