Proctor v. Lothrop , 1878 Me. LEXIS 83 ( 1878 )

Daneorth, J.

By the repeated decisions of this court it has been held that, to authorize the arrest of a contract debtor, the certificate of a magistrate upon the writ must show that all the facts required by the statute were sworn to by the creditor, or some one in his behalf; not necessarily in the language of the statute, but if not, in its equivalent, so that nothing shall be left to inference. Sargent v. Roberts, 52 Maine, 590, and cases cited. Bailey v. Carville, 62 Maine, 524.

In this case it appears from the certificate that the creditor on oath says that the debtor is about to depart and take with him property exceeding the amount required “for immediate support.” The statute requires that it should appear that the property taken should exceed the amount required “ for his immediate support.” These two phrases do not necessarily mean the same thing. That in the certificate is indefinite. It may apply to the debtor, or some other person, or more than one person. That in the statute applies necessarily to the debtor and to him alone. Nor does the connection in which the phrase is used in the certificate limit its application to the debtor. True, we may infer, and probably most persons would infer, that the support intended was that of the debtor. But this would be a matter of inference. The certificate does not so state. Besides, the inference would be drawn from the fact that t he law requires it, rather than from the reading of the certificate. We may, too, feel quite certain that the word “ his ” was omitted by mistake, yet it is none the less an omission.

The test furnished in the argument of the defendants’ counsel is undoubtedly the true one. “ If the certificate may all be true, and the statute not complied with, there is no evidence of authority to arrest.” This certificate may all be true, and yet nothing stated in it as to the “immediate support” of the debtor.

Exceptions overruled.

Walton, Dickerson, Virgin and Librey, J.J., concurred.