Patterson v. Eames , 54 Me. 203 ( 1866 )

CUTTING, J.

Debt on a debtor’s bond, releasing him from an arrest on execution, dated Feb. 9, 1863, upon which, at the trial, the revenue stamp in the presence of th.e Court was properly affixed, as also was that to the certificate of the magistrates, who administered the oath, dated Aug. 8, 1863. See Acts of Congress, approved Dec. 25, 1862, March 3, 1863, and Juno 30, 1864.

The documentary evidence, therefore, introduced by each party, was legally admissible.

But it is contended, by the plaintiff, that the discharge of the magistrates was ineffectual for want of jurisdiction, because one of them was appointed in the absence of the creditor by Samuel Bunker, who, as deputy sheriff, served the citation, and was interested as one of the debtor’s sureties on the bond.

By R. S. of 1857, c. 113, § 24. — "The citation shall be soiwed ou the creditor by an officer qualified to serve civil process between the same parties.” Was the officer so qualified? Chap. 80., § 9, of the same revision, provides that " every sheriff and each of his deputies shall serve and execute, within his county, all writs and precepts issued by lawful authority. Sec. 42 creates the only exception, which is, that — "every coroner shall serve and execute, within his county, all writs and precepts in which the sheriff thereof or his deputy is a party.”

Was Bunker, the officer, who served the citation, a party? lie was not. Walker v. Hill, 21 Maine, 481, where it was decided that a deputy sheriff, the sole party in interest, but not of record, could serve the writ. In that opinion, the Judge misrecited § 60 of c. 104, by the interpolation of the word "interested,” which does not appear in the section, or in any other section of that or any subsequent revision. Had the citation been correct, the decision was erroneous, unless, as was probably the case, the service had been made prior to the enactment.

The officer, then, could not only "serve the precept on which the debtor was arrested,” but was, if it had been pre-seated to him, under legal obligation so to do, and consequently to appoint one of the justices upon the.neglect or refusal of the creditor. E. S., c. 113, § 40. In the performance of such duty he acted ministerially. His interest was remote and contingent. He could not anticipate that the creditor would not appear and select a justice, or that such a justice, if selected by himself, would act corruptly by disregarding his official oath. Plaintiff nonsuit.

Walton, Dickerson, Barrows and Daneorth, JJ., concurred.