Foss v. Edwards , 47 Me. 145 ( 1859 )

The opinion of the Court was drawn up by

Rice, J.

This case presents the question whether it was competent for a debtor, who has given a poor debtor’s relief bond, and has cited his creditor to hear his disclosure on a particular day and hour, to proceed and organize a Court for that purpose by appointing one magistrate, and causing an officer to appoint another, in the absence and without the consent of the creditor, before the hour at which the credit- or had been cited to appear had expired; and, further, if such procedure should be deemed irregular and unauthorized, whether the fact of such organization can be shown by evidence other than the record of the magistrates who compose the Court, and in opposition to the recitals in their record.

Though nothing is to be presumed in favor of the jurisdiction of justices of the peace, and other subordinate tribunals, yet, when their proceedings show upon their face that they have jurisdiction, & prima facie case of jurisdiction is established. But the records of such subordinate tribunals are not conclusive upon this point. Williams v. Burrill, 23 Maine, 144. When, however, the jurisdiction of such tribunals is fully made to appear, the recitals in their records touching any matters legitimately before them are conclusive. Paul v. Hussey, 35 Maine, 97.

The main question here presented is one of jurisdiction. Was the Court before which the principal defendant disclosed legally organized ? The evidence introduced, and for that purpose rightfully, shows that the plaintiff, .by his attorney, was present at the place appointed to hear the debtor’s disclosure at or near half past ten o’clock on the day appointed, the hour indicated for that purpose in the citation being ten in the forenoon, with the intention to appoint one of the magistrates to hear the debtor disclose. The evidence also discloses that prior to the appearance of the plaintiff’s attorney, but after ten o’clock, the principal defendant had appeared at the same place and selected one justice, and had caused an officer to select a second, and, before the two justices thus selected, had made a disclosure, and by them had been admitted to take the oath prescribed by the statute for the relief of poor debtors. This proceeding, it is contended, was premature on the part of the defendant, and, therefore, unavailing to save a breach of the bond.

It was held by this Court in Perley v. Jewett, 26 Maine, 101, that a justices’ court organized at the instance of the debtor, after the expiration of the hour named in the citation, had jurisdiction of the subject matter, and that a discharge given to the debtor by that court was valid, it appearing to the satisfaction of the Court, in that case, that the debtor was present at the time, and ready to proceed by the selection of one justice within the hour named in the citation; but, the creditor not appearing, the other justice was selected by the officer, without unreasonable delay, after the hour had expired. This decision, manifestly, rested upon the ground that each party was entitled to a reasonable time within which to exercise the right of selecting one of the magistrates, and that the whole of the hour named in the citation was a reasonable time for that purpose.

In the case of Hobbs v. Fogg, 6 Gray, 251, the facts agreed were 'similar in all material points to the facts as we find them from the evidence in this case. In that case the debtor cited the plaintiff to appear at two o’clock; and he appeared at half past two, for the purpose of hearing the disclosure, but, before that time, a court had been organized by the debtor, and he had disclosed and been discharged. The Court held this action to be premature, and that the debtor was not legally discharged.

The case at bar falls within the principle of the two cases last cited, which seem to rest on sound reasons, and are in conformity with what is believed to be general usage in analogous cases.

While, on one hand, it would be inconsistent with sound policy, by an over strict and rigidly technical construction, to involve the debtor in a forfeiture, when he had acted in good faith and with reasonable diligence; so, too, on the other hand, as the statute has been made for his protection, such a construction should not be given to it as would enable him to avoid a full examination by the creditor, and an honest and particular disclosure of the condition of his property, and his ability to pay. The rule must be reciprocal, and should be such as not to permit either party to obtain a snap judgment against the other.

On the question of damages, the case falls within the provisions of § 2, c. 263, Laws of 1856, R. S., c. 113, § 48, and the amount to be assessed is the' real and actual damage. The magistrates selected were legally competent to act in the case; that is, they do not appear to have been incapacitated by reason of interest, relationship or otherwise, and the case falls within their general jurisdiction as justices of the peace and quorum for the county. In other words, had the justices been properly selected, there could have been no objection to them, on the ground that the case was not within their general jurisdiction as magistrates for the county, nor that they were under personal disabilities which would prevent their acting in the premises.

According to the- provisions of the report, the damages are to be assessed by a jury, and, for that purpose,—

The case will stand for trial.

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