Guilford v. Delaney , 57 Me. 589 ( 1870 )

Dickerson, J.

Debt on a poor debtor’s bond.

Without considering the other objections to the bond in suit we think it is not a statute bond, because the justices, who approved it, were not selected according to law. By R. S., c. 113, §§ 22 and 40, when the creditor does not approve the bond of a poor debtor taken upon his arrest or imprisonment on execution, it may be approved by two justices of the peace and quorum, one to be selected by the debtor, and the other by the creditor, his agent or attorney; and if the creditor neglects or refuses to select a justice, the officer may select one.

One of the magistrates, who approved the bond in suit, was selected by the officer without any reason assigned for it, and the other by W. P. Whitehouse, without stating to the jury for whom he acted in making the selection. For aught that appears in the case, both the creditor and the debtor may have had no voice in selecting the magistrates who approved the bond. If it were to be presumed that the officer acted in the line of his duty in selecting one of the justices, there would still be wanting evidence that the debtor selected the other.

Though the bond is not a statute bond it is good at common law. Winthrop v. Dockendorff, 3 Greenl. 156. Pease v. Norton, 6 Greenl. 333. Call v. Foster, 49 Maine, 453.

But though the bond is good at common law, in order to save a forfeiture of it, there must have been a performance of one of its alternative conditions. The only condition claimed to have been performed is that which provides for a disclosure before two justices of the peace and quorum, &c., within six months from the date of the bond. This was not done. Although the disclosure was commenced within, it was not completed, nor was the oath taken, until after the six months had expired. The delay was not had at the request of the debtor, nor did he waive his right to claim a forfeiture of the bond, by participating in the examination after the six months had elapsed. So far from intending to waive this right, by this proceeding, the creditor requested the justices to make up their record so as to show the exact time when the oath was administered. It was for the debtor to take care, and cite the creditor in such season, as would enable him to finish his disclosure within the time specified in the bond. The creditor had no voice in appointing the time for making the disclosure ; and the mode and extent of the examination were matters for the determination of the magistrates. It does not appear tliat the debtor or the justices made any objection to the continuation of the examination, beyond the allotted time, or that the creditor requested it. The disclosure and oath were, therefore, in no respect a fulfillment of the condition of the bond. Morrison v. Corlis, 44 Maine, 98. Fades v. Goodhue, 25 Maine, 423. Newton v. Newbegin, 43 Maine, 293. Jewett v. Rines, 39 Maine, 9. Burnham v. Howe, 23 Maine, 489.

The bond being good at common law is subject to chancery according to the actual damages. Call v. Foster, 49 Maine, 453. In accordance with the agreement of the parties, the defendants must be defaulted, and the damages assessed by the court.

The only evidence upon the question of damages is contained in the debtor’s disclosure. That negatives the ownership of any attachable property by him, during the timh covered by the bond, in the direct examination, and the cross-examination does not seem to elicit anything that substantially discredits the answers drawn out in chief. The damages, therefore, are only nominal.

Defendants defaulted for one dollar damages.

Appleton, C. J.; Cutting, Barrows, and Tapley, JJ., concurred.