Kimball v. Irish , 26 Me. 444 ( 1847 )

The opinion of the Court was drawn up by

Whitman C. J.

—The defendant, James Irish, on being arrested on execution, wherein he was one of the debtors, and the plaintiff, the creditor therein, gave a bond as provided in c. 148, § 20, of the Rev. Stat. and on this the present action is founded : and the defence is, that one of the alternatives mentioned in the bond has been performed, and the forfeiture of the penalty thereby avoided ; and this depends on whether the debtor cited the creditor, and disclosed, and was admitted to the oath of a poor debtor, in due form, and has furnished the proper evidence of his having done so.

The objection, specifically made at the trial, to the documents introduced by the defendant, as evidence of his ground of defence, were obviated by amendments, then permitted to be made, and which were clearly allowable, similar amendments having been sanctioned by this Court on former occasions. The Judge, however, in charging the jury, instructed them in general terms, that those documents show a compliance with the provision of the section above cited; and it is now urged, that the certificate by the magistrates, of the taking of the poor debtor’s oath, being one of the documents produced, is without date, and might as well be applied to any other case as to the one in question ; and on inspection of the document, such would seem to be in fact true. But it was used at the trial, without objection, as applicable to this case, and as having been made in regard to the oath taken in pursuance of the process issued and pending before the proper tribunal, in reference to the condition contained in the bond in suit. Regularly, exceptions, in order to be available, should be specifically taken during the trial, and, if not so taken, they should be considered as waived. This certificate was introduced as evidence, that the oath had been taken as required, and went to the'jury without objection, as affording evidence that it had been so taken. If it had been objected to on its being introduced, the defect might have been cured by an amendment, and perhaps by parol proof. The objection, therefore, if valid, when seasonably made, comes too late and cannot be allowed to prevail without manifest injustice.

It is next objected, that no certificate was produced at the trial, such as is provided for in <§> 31 of the statute. This too, is an objection not particularly noticed at the trial, and must be considered as arising, if at all, under the generality of the instruction of the Judge, to the jury. But this provision in the statute has reference to the case of a poor debtor, who, at the time of the proceedings preparatory to taking the oath, was actually in prison, and to procure his liberation therefrom and from a future arrest for the same debt, as is fully manifested in <§> 32 of the same statute, and is not essential to a case in which the debtor may be called upon to show, that he has performed the condition of a bond made in conformity to said 20.

Exceptions overruled,

Judgment on the verdict.