Fales v. Dow

The opinion of the Court was drawn up by

Tenney J.

The condition in the bond declared on is, “ that if the principal obligors shall in six months from the date, cite the creditors before two justices of the peace, quorum unus, and submit themselves to examination, and take the oath or affirmation as prescribed by law for the relief of poor debtors; or pay the debt, interest, costs and fees, arising in said execution; or be delivered in custody of the keeper of the prison,” &c. the obligation to be void. The Revised Statutes, c. 148, <§> 20, require a bond conditioned, that the debtor shall cite the creditor before two justices of the peace and of the quorum. The difference between the condition required and that in the bond is material, and the bond is not a statute bond ; but as the creditors accepted it and put it in suit, it is valid as a bond at common law.

It is contended by the defendants’ counsel, that the condition has been performed, inasmuch as the oath was admin-. istered by magistrates commissioned according to the requirement in the bond. By the language used, the oath in the form prescribed by law, administered by two justices of the peace, quorum unus, was a compliance with that part of the condition, but it was required also that the principal obligors should cite the creditors. The certificate shows, that David Fales and Levi H. Dana were cited, but the creditors named in the bond are David N. Fales and Levi H. Dana. These names are not the same, and by the authority of decided cases, the certificate is insufficient as a defence to the action, and the defendants must be defaulted.

The bond is not such an instrument, as is referred to in c. 31, <§> 9 of 1842, in which a jury are to assess the damages. The only evidence as to the ability of the debtors is found in the certificate, and the damages to the plaintiffs can be nominal only. Judgment for the penalty of the bond, and execution to issue for one cent damages and costs.