Daniel v. Butler , 21 Me. 191 ( 1842 )

The opinion of the Court was drawn up by

Shepley J.

— This suit is upon a poor debtor’s bond and is presented for decision on an agreed statement of facts. The act of 1835, c. 195, provided, that a debtor arrested or imprisoned on execution issuing on a judgment in a civil suit might give bond conditioned, that in six months he would cite the creditor and submit himself to examination and take the oath prescribed, or pay the debt, interest, costs and fees, or be delivered into the custody of the jailer within said time. And the tenth section provided for his discharge from the commitment upon proper proof, that he had taken the oath.

The supplementary act of 1836, c. 245, <§> 7, substituted another oath for that required by the former act. That oath appears to have been so framed as to allow the debtor to be discharged, when he disclosed truly the state of his affairs, although he disclosed, that he had property sufficient to pay the debt. -And no provision was made by which the creditor could obtain satisfaction of his debt from the property disclosed, if the same consisted of dioses in action, or other property not liable to be seised and sold on execution.

The second section of the act of 1839, c. 412, appears to have been designed to remedy this evil by providing, that when the debtor should disclose “any bank bills, notes, "accounts, bonds, or other dioses in action, or any property not exempt by law, which cannot be come at to be attached,” three disinterested men should be selected, in case of disagreement between the creditor and debtor in appropriating the property to the payment of the debt, and that they should under oath appraise off sufficient property thus disclosed to pay it. The act then declares “and in case the creditor shall not appear at the disclosure of said debtor, or appearing shall refuse or neglect to choose an appraiser, the justices shall appoint a man for him to appraise such property as is disclosed as aforesaid.”

it was not the intention to permit the oath to be administered to the debtor until he had performed all the duties, which the statute required of him. One of these was to select a person to make such appraisal. And the creditor was entitled to have the appraisal made, that, lie might voluntarily receive the property in payment of his'debí, if he thought proper to do so. Whether the provision so far as it attempts to discharge his debt without his consent be constitutional is not now the subject of inquiry.

It is said in argument for the defendant, that there is no evidence, that the notes disclosed were not appraised. The agreed statement does not show, that any appraisement was made, and such agreement must be presumed to state all the facts material to a correct decision of the case. It is on those facts, that the parties submit the case for decision.

Again it is said, that the defendant has performed one of the alternatives named in the condition of his bond by taking the oath. The answer to this argument is, that it was illegally taken, and that it was therefore wholly inoperative. He was not entitled to have the oath administered, until after an appraisement had been made, and he cannot plead an illegal act as a performance of the condition of his bond ; and must be regarded as in the same position as if he had not attempted to take the oath.

Exceptions sustained and judgment for the plaintiff,