Ross v. Berry , 49 Me. 434 ( 1862 )

Davis, J.,

dissenting. — I concur in the opinion that the justices who administered the oath to the debtor, had no jurisdiction of the matter, under the statute, after their associate had refused to act. This raises the question whether the bond was a statute bond.

The bond did not differ from the requirements of the statute in any particular, unless the penal sum was too large. As the obligors would in no event be liable for - the whole penal sum, the question is purely a technical one.

The bond was in' double the sum due. on the execution, with the officer’s fees, including his dollarage, or fees for collecting. It is urged that he had no right to include such fees.

"For services under the provisions of law for the relief of poor debtors,” the officer has no right to charge the creditor any dollarage, or commission, in case of an arrest of the debtor, "except upon the money actually collected.” R. S., c. 116, § 5. He charges the debtor nothing, unless he pays the execution, in which case, he is entitled to dollarage. Unless he has the right to reckon this fee in his return, as a contingent one, to be paid to him if the debtor performs the condition of payment in the bond, the debtor might always avoid the payment of dollarage by giving a bond, and then immediately tendering payment. The provision of statute, that the officer, in these very cases, shall be allowed dollarage " on the money actually collected,” seems to imply that he may charge it as a Contingent claim, and be entitled to it, if the debtor pays the execution upon the bond.

But the officer finds his directions for taking the bond in an entirely different statute. In 'that, the debtor is required to give a bond to the creditor, " in double the sum for which he is arrested.” R. S., c. 113, § 22. For what sum is the debtor arrested ? Is it not for the sum which the officer has a right to demand ?

The officer is directed by his precept to collect the amount of the judgment for debt, and cost, with interest thereon, &c., together with his own fees, and for want of property "to satisfy the sums aforesaid,” to arrest the debtor. The "sums aforesaid,” if paid, would clearly embrace fees for collecting’, or dollarage. Is he not arrested for them, — that is, in default of paying them?

If the debtor should offer to pay all except the dollarage, but, refusing to pay that, the officer should arrest him, as he rightfully might, would he not be arrested for the whole amount, including dollarage? And if so, ought not the bond to be in double the whole amount, as in the case before us ?

But if it is conceded that the bond in this case is valid only at common law, I cannot come to the conclusion that there has been a performance. If it varies from the statute, it is not in the conditions to be performed, but in the penal sum only. The conditions are precisely the same as in a statute bond. How, then, can any acts constitute a performance in one case, which would not in the other?

When the conditions of the bond are different from those required by the statute, as to the time of performance, or in regard to the justices who may act, the debtor must perform the conditions of the bond, and not of the statute. There are many cases of this kind. And this Court may have inadvertently held that to be a performance of a common law bond, which would, not have been a performance of a statute bond, when the conditions were the same. If so, the sooner such an error is corrected, the better.

In. the bond now under consideration, the debtor covenants to " submit himself to examination and take the oath prescribed by chapter 113, section 28, of the Revised Statutes.” The conditions to *be performed are literally the same as in a statute bond. The statute is expressly referred to in the bond; and, by a well settled rule of construction, we must resort to the statute to ascertain the intention of the parties. And submitting to an examination, and taking the oath prescribed by the statute, requires that the proceedings should be according to the statute. So it was expressly held by this Court, in the case of Hovey v. Hamilton, 24 Maine, 451; and, upon a common law bond, the certificate of discharge was, in that case, pronounced void, because one of the justices who administered the oath made an adjournment not provided for by the statute.

The decision in this case is, that upon such a bond, the debtor may cite the creditor before one tribunal, and then take the oath before another, which has no jurisdiction, and the discharge be valid. I cannot concur in such a decision.