Inhabitants of Norridgewock v. Sawtelle , 1881 Me. LEXIS 129 ( 1881 )

AppletoN, C. J.

In a suit pending before a trial justice between the plaintiffs and one M. M. Gould, the latter appealed from the judgment rendered against him. The appellant with the defendant’s^. intestate recognized to the plaintiff, "with condition to prosecute the appeal with effect and pay all costs arising after the appeal” in accordance with R. S., c. 83, § 18.

Judgment having been rendered against Gould in the appellate court, execution issued thereon,'Gould was arrested and gave a poor debtor’s bond upon which he made or attempted to make a valid disclosure and on which he was discharged by the justices before whom the disclosure was had.

If the disclosure was valid and before a competent tribunal, that would not constitute payment. It would not be a performance of the condition of the recognizance.

The justice chosen by the officer before whom the disclosure was had was an inhabitant of the plaintiff town. He was not disinterested, as by the statute B. S., c. 113, § 28 is required. He could not have acted as juryman between the parties, if objection had been taken to his action. Hawes v. Gustin, 2 Allen, 403.

The bond was given to procure a release from arrest. " Such bonds,” observes Shepley, C. J. in Bates v. Tallman, 35 Maine, 275, "are only collateral security for the debt; and the creditor may refuse to prosecute them or may discharge them without relinquishing his debt.” The liability the defendant incurred by • entering into the recognizance upon which this suit has been brought, has not been discharged. The "costs arising after the appeal” have not been paid.

Judgment for plaintiffs.

Walton, Barrows, Peters and Libbey, JJ., concurred. Daneorth, J., did not sit.