Randall v. Bowden , 48 Me. 37 ( 1860 )

The opinion of the Court was drawn up by

Goodenow, J.

This is an action upon a poor debtor’s bond, dated Dec 9, 1857, signed by Robert G. Bowden, as principal, and Absalem Bowden as surety. There is no approval of the surety “ in writing by the creditor, or by two justices of the peace and of the quorum of the county.” It is, therefore, not a statute bond. The acceptance of it by the plaintiff, and bringing a suit upon it does not make it a statute bond. He was under no obligation to take it. One of the conditions of the bond is, that the said Robert G. Bowden should, in six months from the time of executing said bond, cite Joshua T. Randall the creditor, before two justices of the peace and of the quorum,, and submit himself for examination, agreeably to the 148th chapter of the Revised Statutes, and take the oath prescribed in the twenty-eighth section of said chapter.

The question is, has he done this ?

Application was made by said Robert G. Bowden to Luther T. Mason, Esq., a justice of the peace within and for the county of York, on the 12th day of May, 1858, in writing, claiming to have the privilege and benefit of the oath authorized by the 28th section of chapter 148, and requesting said justice to cite said creditor to appear before two justices of the peace and of the quorum, at the office of Luther T. Mason, in Biddeford, in said county of York, on the 4th day of June, A. D. 1858, at ten of the clock in the forenoon, &c.

On the same day, said justice issued his citation under his hand and seal to the said Randall, to appear before two justices of the peace and quorum, at the time and place, and for the purpose mentioned in said application. On the 1.3th of May, 1858, O. P. Hunton, a deputy sheriff, returned on said citation and application that “ by virtue of the within I have this day notified the within named Joshua T. Randall, to appear at the time and place and for the purpose within named, by reading to him aloud in his presence and hearing the within application and citation.” On the 7th of June, 1858, the following certificate appears to have been made by the magistrates: — “York, SB., June 7th, 1858. Having examined the above return, and duly cautioned the said Robert G. Bowden, we have administered to him the oath or affirmation allowed in the statute of October 22, 1840, § 28, c. 148, above referred to; and made out a certificate thereof in the form therein prescribed.

“ Jacob K. Cole, 7 Justices of Peace

“ Samuel W. Luques, 3 and quorum.

“ Alex’r P. Chisholm, selected by A. Haley, Deputy Sheriff of said county, because said Cole and Luques were disagreed on points for adjudication, and on selection of a third justice.”

It does not appear from the papers that the justices, who administered the oath and granted the certificate-, had any jurisdiction ; or that the justice, who issued the citation, was not a justice of the peace in the county where the debtor was arrested. I think it may well be presumed that he was. Where nothing appears to the contrary, it is to be presumed that men do their duty, rather than that they violate the laws; and especially officers under oath; and to save forfeiture or avoid a penalty.

The main point relied upon by the plaintiff is, “ that the debtor did not take the oath.” The case shows that he did take the oath “ nominated in the bond.” As to the other oath prescribed by the statute of 1857, he may well say, “ non in haec foedera veni,” when sued upon this bond.

Upon the whole, without going into a minute comment upon all the positions taken and authorities cited, I am of opinion that a nonsuit must be entered and judgment entered for costs for defendants. • Plaintiff nonsuit.

Tenney, C. J., and Appleton, Cutting, and Kent, JJ., concurred. Davis, J., concurred in the result.