McGilvery v. Staples , 81 Me. 101 ( 1888 )

Emery, J.

Tlie material 'facts are these: A debtor, who had been arrested on execution, and had given the usual “six months bond,” essayed to disclose, and take the poor debtors’ oath in fulfillment of his bond. The justice selected by him favored administering the oath, but the other justice objected, and the third justice called in sustained the objection. The debtor then again cited the creditor to attend a new disclosure, and selected the same justice, who in the former hearing had favored administering the oath. The creditor objected and protested against this justice acting a second time in the same matter, but without avail, and this time the oath was administered. The creditor then brought this suit upon the bond, claiming it has not been fulfilled by a disclosure before two disinterested justices. The only question is, was the justice chosen by the debtor at the second disci osure disinterested.

The justice was admittedly qualified to hear and determine the first application. He was then a “disinterested justice of the peace and quorum for the county.” 11. S., c. 113, § 28. The creditor, however, insists that the justice, having heard and adjudicated upon the first application, is no longer “disinterested” in the matter of the debtor’s applications for a discharge from this arrest. No other objection is made to his disinterestedness, or qualifications.

The justice was of course disinterested unless he had an interest in the question, — not an intellectual, moral or sympathetic interest, but a legal, positive interest, either by way of relationship to some of the parties, or by way of some accruing pecuniary gain or loss from the result. The justice clearly had no such legal interest at the time of the second hearing, and hence was disinterested.

It does not follow that the justice, by reason of the prior hearing, could not, or did not adjudicate honestly and impartially at the second hearing. If, however, he carried into the second hearing, a pride of opinion formed at the first hearing, that would affect only his mental and not his legal qualifications. This court cannot entertain challenges against the members of any inferior courts, who are legally qualified and appointed. Lovering v. Lamson, 50 Maine, 334; Fuller v. Davis, 73 Maine, 556.

Judgment for defendants.

Peters, C. J., Walton, Daneorth and Virgin, JJ., concurred.