Moore v. Bond , 18 Me. 142 ( 1841 )

The opinion of the Court was drawn up by

Shepley J.

The proceedings offered in evidence by the defendants, to prove a performance of the condition of the bond, are alleged to be insufficient for that purpose.

1. Because the notice to the creditor stated, that the debtor proposed to take the oath provided by the act of 1835, instead of that provided by the act of 1836. The object of the notice is to afford him an opportunity to appear and examine the debtor; and he did appear without objection and examine, and when both parties were present before the magistrates, and entered upon the examination at the time and place appointed, there can be no doubt, that they had jurisdiction and were entitled to proceed. It is analagous to a defective service, which becomes immaterial, when the party has appeared without objection. And so it was considered, in Haskell v. Haven, 3 Pick. 408.

2. It is said, that the day of the date of the bond, should be included in the computation of the six months. It was the intention of the legislature to allow the debtor six months to fulfill the conditions of the bond ; and if there were any doubt respecting the construction, the principle established in Windsor v. China, 4 Greenl. 298, that, to save a forfeiture, the court should adopt a liberal one, requires, that the day should be excluded.

3. It is alleged, that the magistrates adjourned without any legal authority for it. By the prior acts they were authorized to adjourn, and the act of 1835 repeals only so much of them, as are inconsistent with its provisions, and as relate to jail yards and limits. If all the provisions in former acts, relating to the same subject, were to be regarded as repealed, there would be no longer any law requiring the justices to keep a record of their proceedings, or authorizing an adjournment, or the creditor to receive the answers, which the debtor had made and signed; and that part of the fourth section of the act of 1835, relating to the disclosure, would be obscure and defective; for while it provides, that the debtor shall sign and make oath to the same, it makes no provision, that the interrogatories shall be put and answered in writing. There is no express repeal of the former provisions on any of these subjects; nor can any inference be drawn from any thing in the act of 1835, that such was the intention, while there is much to authorize a different conclusion.

4. It is said, that the defendants did not actually perform the condition, by taking the oath within the six months. The argument assumes, that, as a necessary consequence, the plaintiff is entitled to recover. Such, however, is not the conclusion of the law, for a strict performance is, in certain cases, excused. It is so, where the law interposes and prevents it, or the obligee, by his own act, occasions it. Com. Dig. Cond. L. 6 and 13. The plaintiff, in"this case, procured the adjournment, and thereby occasioned the delay of which he now seeks to take advantage; but the law, by excusing performance under such circumstances, does not permit him to do it.

5. Because the proper oath was not administered. Although the certificate of the magistrates refers, by the title, to the act of 1835, instead of the act of 1836, as containing the oath administered, yet the copy of the oath, annexed to the certificate, and signed by the debtor, shows that the proper oath was administered. This, it is said, forms no part of the case, because, in the bill of exceptions, it is only stated, “ said certificate is to form a part of this case.” When a paper, offered in evidence, is referred to in a bill of exceptions, by a particular name or description, the legal presumption is, that the whole paper is intended to be presented to the court of law, and not so much of it only as may best comport with the description of it.

Exceptions overruled.