Sargent v. Roberts , 52 Me. 590 ( 1864 )

The opinion of the Court was drawn by

Appleton, C. J.

To authorize the arrest of a debtor under the provisions of R. S., 1857, c. 113, § 2, the creditor, his agent or attorney, must make oath before a justice of the peace, "to be certified by such justice on said process, that he has reason to believe, and does believe, that such debtor is about so to depart, reside and take with him property or means as aforesaid, and that the demand or principal part thereof, amounting to at least ten dollars, is due him.” In the oath, as administered and certified, the important words " and take with him” are omitted.

It is for the Legislature to fix the conditions under which an arrest may be made, and to prescribe any and what oath is to be taken as an indispensible preliminary to such arrest. It is for the party making the arrest to comply in all respects with the requirements of the Legislature.

In French v. McAllister, 20 Maine, 465, the words ”to take with him” were omitted, and the Court sustained the sufficiency of the oath as certified by the magistrate. But in Bramhall v. Seavey, 28 Maine, 45, the sufficiency of an oath when these words were omitted, was discussed and considered by the Court, and their necessity was affirmed. Not having been used in that case, the arrest was held unlawful, and the bond void as obtained by duress. In Shaw v. Usher, 41 Maine, 102, the case of Bramhall v. Seavey was referred to and affirmed.

The last revision of the statutes, in 1857, was made by the learned Judge by whom the opinion in Bramhall v. Seavey, had been drawn. It cannot be doubted that, in retaining the language of the previous statute, he did it with the expectation and intention that it should receive the construetion he had given it in the case to whigh referenóe has just been had. The Legislature, reenacting a statute without change of language, must be regarded as adopting and affirming the judicial construction previously given thereto.

The arrest having been unauthorized, the oath not being in conformity with the requirements of the statute, the bond given to procure a discharge therefrom, was obtained by duress, and is not binding. The action cannot be maintained. Plaintiff nonsuit.

Cutting, Walton, Barrows and Daneorth, JJ., concurred.-