Fuller v. Davis , 73 Me. 556 ( 1882 )

Appleton, C. J.

This is an action of debt on a poor debtor’s bond. In the condition of the bond is the recital that John Davis, Jr. "has been and is now arrested by William Paine, deputy sheriff for said county of Piscataquis by virtue of an execution issued against and on a judgment obtained against him, the said John Davis, Jr. by the said James Puller.” Then follows a description of the judgment.

The plaintiff next introduced the execution on which the arrest was made and to obtain release from which the bond was given.

By the officer’s return thereon, it appeared that the arrest was made by and the bond given to a deputy sheriff of Piscataquis county and in that .county.

The certificate of discharge by the justices before whom the disclosure was had, is in strict conformity with the provisions of E. S., c. 113, § 33.

It is objected that the citation is insufficient. But it contains all the essential facts required by R. S., c. 118, § 26, or by the statute of 1874, c. 198. But were the citation to be deemed defective, the creditor appeared by his attorney, who took no exception to its deficiency or validity either as to its form or its substance, submitted to the jurisdiction of the justices and examined the debtor for two days. By so doing he must be held to have waived all objections on account of any defects, if any there were, in the citation. Page v. Plummer, 10 Maine, 334; Lord v. Skinner, 9 Allen, 376 ; Lynde v. Richardson, 124 Mass. 557.

The certificate of the justices states that the debtor had caused the creditor to be notified according to law and is prima facie evi- ’ dence of a legal service. Granite Bank v. Treat, 18 Maine, 340 ; Bliss v. Day, 68 Maine, 201. There is nothing to throw doubt upon the legality of the- service and if there was, any illegality is waived by the appearance.

But it is claimed that the magistrates had no jurisdiction because it does not appear in what county the arrest was made. But such is not the fact. The very bond on which this suit is brought states that it was given to procure a release from arrest in the county, where the magistrates giving the certificate resided and had jurisdiction. The bond which is the basis of this case, proves the jurisdiction of the magistrates. If parol evidence is admissible to disprove jurisdiction, much more can its existence be established by the very proof on which the plaintiff rests his case. Both the bond in suit and the execution on which it was taken show the arrest in Piscataquis county and consequently jurisdiction in the magistrates of that county.

It was objected that Henry Hudson was interested and could not legally act as one of the justices to hear the disclosure of the debtor. But such was not the fact. .That the debtor owed him did not disqualify him. Besides, the objection was not taken at the hearing, though known to the creditor.

Judgment for the defendants.

Walton, Barrows, Danforth and Peters, JJ., concurred.