Keith v. Bolier , 92 Me. 550 ( 1899 )

Wiswell, J.

Action upon a poor debtor’s bond. Neither of the conditions of the bond have been complied with, but it is claimed in defense that the bond is not a statute bond for two reasons.

1. Because the penal sum of the bond is not exactly double the amount due on the execution. The amount due on the execution at the time the bond was given was $12.49, the penalty of the bond is $24. But by R. S., c. 113, § 25, such a bond is a valid statute bond although the penalty varies not exceeding 5 % from double the amount due on the execution. Double the amount due on the execution in this case is $24.98, the difference between the penalty of the bond and the amount that it should have been is less than 5 % of the penalty. This difference is allowed by statute. The percentage of difference is to be computed upon the penalty of the bond.

II. Because in the return of the officer upon the execution his fees are stated to be $2.12, while in the bond the amount of his fees is named at $2.06. The court at nisi prius ruled that this variance was not fatal to the validity of the bond as a statute bond. We have no question of the correctness of this ruling. The defendants were not injured by this trifling difference, which was in the debtor’s favor. Moreover" this variance, in addition to that previously considered with reference to the first objection, is still within the percentage of difference allowed by statute.

Exceptions overruled.