Warren v. Davis , 42 Me. 343 ( 1856 )

Cutting, J.

The bond, execution, citation and certificate referred to, and made a part of the case, have not been furnished, and we can ascertain the facts intended to be submitted only from what we can gather from admissions made in the arguments of counsel; from which it would appear that both the citation and certificate corresponded with all the essential data in the bond, except that the judgment described in the former was stated to have been rendered on the third Tuesday of January, 1855, instead of 1853, as disclosed in the latter, and which was the correct date.

The certificate of the justices, who administered the oath, is not in accordance with the requirements of the R. S., c. 148, § 31, which makes it necessary for them, among other things, to certify “the date of the judgment.” But the certificate, in every other particular, being in accordance with the facts, “ we think, that on the whole, the (record) evidence preponderates in favor of the identity of the judgment,” as was decided in Hathaway v. Stone, 33 Maine, 500, where a very similar state of facts was disclosed, both as to the error in the certificate and the poverty of the debtor. And, as the Court remarked in that, so we decide in this case, “ 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 costs.” R. S., c. 85, § 3; Call v. Barker, 28 Maine, 317; Bard v. Wood, 30 Maine, 155.

Plaintiff nonsuit. — No costs for defendants.

Tenney, C. J., and Rice, Appleton, May and Goodenow, J. J., concurred.