Levett v. Jones , 49 Me. 355 ( 1860 )

The facts in the case are sufficiently stated in the opinion of the Court, which was drawn up by

Rice, J.

Debt on a poor debtor’s bond. The case shows that the principal in the bond, within the time prescribed by law, cited the creditors before two justices of the peace and quorum, was fully examined by astute counsel for the creditors, and was discharged. He disclosed no estate real or personal, not exempt from attachment, unless it was the sum of five dollars and two cents with which he had provided himself to defray the expenses of his disclosure. This sum he placed in the hands of his attorney, before he commenced his disclosure, directing him to pay the justices their fee and to retain the balance for his own services. He also states that the claim of his attorney on him was more than the whole amount thus deposited with him. It also appears, that the debtor’s attorney did not pay over the foe of the justices until the disclosure had been commenced. There is no assertion, however, that the disclosure was not a full and fair one, and that, aside from the money already spoken of, the debtor was not entitled to have the oath administered to him.

But, under the authority of Butman v. Holbrook, 27 Maine, 419, the plaintiffs claim a forfeiture of the bond. In the case cited, the learned Judge, who delivered the opinion, manifestly felt that he was giving’ the statute a rigid, technical construction, and awarding the pound of flesh without abatement to the plaintiff.

The case at bar, however, does not fall within the rule prescribed in that case. There the money was not appropriated till after the disclosure had been commenced. Here the appropriation was made before it commenced. The distinction is not very broad, it is true, but sufficiently so to permit the defendants to escape the technical trap.

Plaintiffs nonsuit.

Tenney, C. J., Cutting, May, Goodenow and Davis, JJ., concurred.