The opinion of the Court was drawn up by
Shepley J.This is a suit on a poor debtor’s bond made before the Revised Statutes took effect, and containing unusual provisions. There was a performance of the condition attempted to be made according to the provisions of those statutes, but it was ineffectual. The examination of the debtor did not take place “before two disinterested justices of the peace and of the quorum,” as required by Rev. St. c. 148, § 24. One of those justices was the brother-in-law of one of the debtors, who made a disclosure and took the oath ; and he Was not disinterested as required by Rev. Stat. c. 1, <§> 3, Rule 22. The proceedings designed for a performance took place before justices having no jurisdiction and were wholly void.
The condition of the bond provided, that the oath should be taken “ before two justices of the peace quorum unus.” That the debtor should offer and tender'to the creditor “ all personal property and real estate, the value’ of the same to be come at by the appraisal of two disinterested men, to be chosen and designated by said justices who take said disclosure, provided *168the parties do not agree to the value,” except property exempted from attachment. That the debtor should “ give priority to this said demand, unless the said debtor shall be under •bond of an earlier date, on which he has not been discharged by his oath, or by settlement.” These provisions of the bond were unauthorized by the statutes then in force. It can be good only as a bond at common law, and is subject to chancery. It has been forfeited by neglect to perform in a legal manner any of the acts required by its condition. By the act of amendment of 1842, c. 31,4 9, of c. 115, § 78, the jury are to. assess the damages in actions upon bonds conditioned for the performance of any covenants or agreements. This is not such a bond, as was decided in Hathaway v. Crosby, 17 Maine R. 448. It is the duty of the Court, upon a hearing in chancery, to assess such damages as the plaintiff shall prove, that he has actually suffered.
The default will remain and the defendants be heard in damages.