Hathaway v. Stone , 33 Me. 500 ( 1851 )

Shepley, C. J., orally.

— The question is, whether a performance of the condition of the bond has been proved by the documentary evidence. The certificate of discharge, given by the two justices of the peace and of the quorum, is not in the statute form. The statute requires, that a certificate of discharge shall state at what Court the judgment was recovered, and specify the amount of the judgment. In each of these particulars the certificate is deficient. It fails therefore to prove a performance of the condition of the bond.

The record of the justices is also deficient of the allegations which it ought to contain, as to the Court, and the amount of the judgment. These particulars are necessary, in order to show that the execution, recovered by the plaintiff, is the same on which the oath was taken. The record, then, fails to make out a defence.

The papers to which we have been referred, show, that upon some execution in favor of the plaintiff against this debtor, the poor debtor’s oath was taken.

If that execution was the same upon which the bond now in suit was given, the debtor is entitled to the benefit of the Act of 1848.

The parties named are the same ; the date of the execution is found in the record, the date of the judgment is found in the certificate, and the description of the Court is found both in the citation and in the certificate. But the record tends to show the Court to have been a different one.

The amount of the judgment is given in neither of the documents. In view of all the documents we think that, on the whole, the evidence preponderates in favor of the identity of the execution.

The depositions prove the debtor to be poor, and therefore, that no damage has accrued to the plaintiff from the nonperformance of the condition. The papers also show, that the oath was taken before the breach.

For the foregoing reasons, the plaintiff is not entitled to recover, and the debtor, not having performed the condition of the bond, can have no judgment for cost.