Lewis v. Brewer , 51 Me. 108 ( 1863 )

The opinion of the Court was drawn up by

Walton, J.

When a person, arrested on execution and released upon giving a poor debtor’s bond, desires to disclose, the law requires that the citation to the creditor should bo under seal. R. S., c. 113, § 23.

If the justices, selected to hear the disclosure, certify in their record, that they have examined the citation and return] and find them correct, is it competent for the plaintiff, in an action upon the bond, to invalidate the record by showing that the citation was not under seal ? This is the only question in the case.

Our statutes for the relief of poor debtors have always required the justices to examine the citation and return, and to adjudicate upon their sufficiency before proceeding to examine the debtor; and this Court has repeatedly held, that their adjudication was final and conclusive, and that evidence is not admissible, in an action upon the bond, to contradict the record in these particulars.

By the Act of 1856, c. 263, incorporated into the R. S. of 1857, (c. 113, § 48,) it is provided that evidence may be received to show that no legal service of the citation was made, though it may contradict the record and certificate of the magistrates who administered the oath. But this provision applies only to the service of the citation, leaving adjudications upon the sufficiency of citations in other respects unaffected and conclusive as before. So held in Baldwin v. Merrill, 44 Maine, 55. The phraseology in the Revised Statutes is slightly different from that in the Act of 1856, but the meaning is the same.

It is admitted by the defendants, that the citation in this case was not under seal, provided it is open to the plaintiff to prove such fact.

The justices having certified in their record that they had examined the citation and return and found the same correct, the Court is of opinion that it is not competent for the plaintiff to invalidate this record, by proof that the citation was not under seal.

If a party desires to take advantage of such a defect, he should call the attention of the justices to it, in which case they would undoubtedly hold the citation to be insufficient. If not, the aggrieved party could apply for a writ of certiorari to quash their proceedings. But the justices’ record cannot be impeached collaterally, when offered in evidence in a suit upon the bond. Plaintiff nonsuit.

Appleton, C. J., Davis, Kent and Dickerson, JJ., concurred.