The opinion of the Court was by
Emery J.On the impression which we entertain of the merits of this case, it becomes quite unimportant to settle whether the act of 8th of Feb. 1839, be unconstitutional, though we should be slow in coming to such a conclusion. The present case seems not to come within, the class of cases intended to be affected by that statute. That was intended to be confined to cases arising under the acts of 1835 and 1836, and to bonds rightfully taken under those acts.
We are satisfied that the bond now under consideration was designed to be taken by virtue of the statute of 1822, as it ought to have been. The debt arose in 1821. The suit for its recovery was>in 1833. The bond is dated in 1837.
In the action, Huntress v. Wheeler, 16 Maine R. 290, it has been decided that a bond to obtain a release from imprisonment, on an execution on a judgment on a contract made before the statute of 1831, c. 520, where the action on which the judgment was rendered was commenced before the statute of 1835, c. 195, went into operation, should be made pursuant *377to the provisions of the statute of 1822, c. 290, and if it be taken in accordance with the provisions of the statute of 1835, it is not good as a statute bond, but only at common law, and the plaintiff can recover only the original debt, costs, and interest.
In the present bond, the condition provided that if the said James Carlisle shall in six months from the date of the bond, cite the execution creditor before two justices of the peace, quorum unus, and submit himself to examination, and take the oath or affirmation prescribed by law for poor debtors, or pay the debt, interest, costs, and fees arising on said execution, or deliver himself into the custody of the jather, within said time, then this bond shall be void, otherwise remain in full force and virtue, and that is the condition prescribed in the statute of 1835, c. 195.
By the agreed statement of facts, we perceive that Carlisle took the oath prescribed in the act of 1838. Neither the plaintiff nor his attorney were present, and prior to the citation of the plaintiff’s attorney, said Carlisle did not make application or complaint to the jather.
Under these circumstances, having heretofore decided that the act of 8th Feb. 1839, was constitutional, though we do not think that this case is protected by it, we must adhere to the decision in Huntress v. Wheeler, so far as to consider this a good bond at common law, and give judgment for the plaintiff) as the parties have agreed, for the debt, costs, interest, and fees.