Bell v. Furbush , 56 Me. 178 ( 1868 )

Barrows, J.

The bond here sued is a bond taken on mesne process, and it is in most respects similar to the one provided for in § 16, c. 113, R. S., which is referred to in it, but it embraces, in addition to the conditions prescribed in that section, a further condition, that the principal obligor shall "take the oath prescribed in the 28th section of said chapter.”

It cannot be considered a statute bond. The taking of the oath was not a necessary sequence of the submission to examination in the regular statute course of proceeding. Full compliance with the conditions of a statute bond might be had without taking it at all, as appears by reference to §§ 18 and 19 of c. 113. Herein the facts in this case differ essentially from those in Hatch v. Lawrence, 29 Maine, 480, cited by plaintiff’s counsel. There, the condition of the bond was substantially, though not in terms, identical with that of the statute bond.

As this is not a statute bond, in the absence of any proof - that the conditions were varied by mistake or accident, we must hold, in accordance with the doctrine laid down in Clark v. Metcalf, 38 Maine, 122, Flowers v. Flowers, 45 Maine, 459, Merchant’s Bank v. Lord, 49 Maine, 99, and Ross v. Berry, 49 Maine, 434, that the debtor is not required to perform any statute provisions relating to poor debtors except those whieh are recited in the bond he has given; and, in this case, if he has seasonably cited the creditor, submitted himself to examination at the time and place appointed, made true disclosure of his business affairs and property, under oath, and taken the prescribed oath before two justices of the peace and of the quorum, according to the conditions of his bond, he is entitled to judgment in his favor, notwithstanding a failure to conform, in the proceedings before the justices, to the statute requirements. It appears that Furbush did seasonably cite James Bell, the plaintiff in the suit in which he was arrested, and his judgment creditor therein, to attend his disclosure within the time fixed by the bond, before two justices of the peace and of the quorum, at the office of Samuel Titcomb, Esq., in Augusta. The citation seems to have taken effect, for at the time and place appointed came Nathan Mower, the assignee of the original suit and the equitable owner of the judgment recovered therein, by his agent and attorney, to object that the citation ought to have been served upon him and not upon the plaintiff of record. Two justices of the peace and quorum, one selected by Furbush and the other by Mower’s attorney, disagreed as to the sufficiency of the service and selected a third justice, and a majority of the Court, thus constituted, held the notice insufficient and refused to hoar the disclosure, and made a record of their proceedings. But the debtor and his attorney, and the justice by them selected, persisted in proceeding under the citation to have a disclosure, notwithstanding this adjudication, and the creditor’s attorney was informed of this intention on the spot. He, however, with two of the three magistrates, withdrew, and thereupon the justice originally selected by the debtor adjourned for a few minutes to procure the attendance of another justice; the creditor neglecting to choose, one was selected by a deputy sheriff in his behalf, and, before the tribunal thus constituted, the debtor went on and made his disclosure and took the oath specified in his bond. Thus there has been a common law compliance with the conditions of a bond which was good only at common law. It is unnecessary to determine whether the point which the creditor made before the first corps of justices was well taken or not. The debtor did cite the creditor, did submit himself to examination in accordance with the terms of his bond, before two justices, and take the required oath; and, the bond not being a statute bond, it matters not, according to the cases above cited, that the requirements of the statute were disregarded in their selection and proceedings. It is a satisfaction to remark that there are no apparent equities with the creditor. He declined to hear the proffered disclosure, and sought to work a forfeiture of the bond by a resort to technicalities. For want of technical accuracy iu the outset, in the taking of his bond, the effort proves unavailing. Judgment for defendants.

Appleton, C. J., Cutting, Walton, Dickerson and Daneorth, JJ., concurred.