French v. McAllister

The opinion of the Court was by

Weston C. J.

The affirmation of the creditor, certified by the justice, is, that the principal debtor is about to depart and establish his residence beyond the limits of this State, with property or means more than sufficient for his immediate support. This must be regarded as equivalent to an affirma*468tion that he was to take with him such property or means, in the language of the statute.

The Statute of 1835, c. 185, <§> 7, provides, that if in the opinion of the justices, the debtor shall not have entitled himself-to the benefit of the oath, lie shall be committed to prison, unless the creditor shall within thirty days elect to levy his execution upon the property disclosed. By the statute of 1836, c. 245, $ 8, the debtor is permitted to go at lárge, until the creditor shall, have made his election, whether to take the body of the property, which by the former statute must be done within thirty days. But as he was 'not to be committed at the time of his disclosure, the statute of 1836, § 3, required that the bond should be upon the further condition, that he should submit to an examination, make disclosure under oath, and abide'the order of the justices.

. The condition of the bond in 'question is, that the debtor should notify the creditor to attend to the making of the disclosure and the oath', and that he should further do and perform all that is required in and by the acts in such cases’ made and provided. This does by an intelligible reference to a public law, impose the condition, that the debtor should abide the order of the justices. Their order-was, that he. should go at large, until the creditor should make his election to take the body or the property. As his enlargement, was to be. only until the election was made,'the necessary implication is, that if within thirty days he should elect to take the body, it should be forthcoming, to be taken and imprisoned. The statute of 1835, <§> 7, gives the creditor a lien upon the property disclosed, for .the space of thirty days, but his right to the body of the debtor is not restricted to that period. If the enlargement of the debtor may be justified, until notified of the election of the creditor, neither of the statutes makes provision for such notice. We are aware therefore of no just reason why it might not be given after thirty days, if the execution remained in force. It is fairly deducible from the statutes, that the election should be made within thirty days. This the creditor did, and within that time put into the hands *469of the proper officer his execution, with orders to take the body of the debtor.

The debtor, with the aid of his sureties, had obtained an indulgence. Its limits were fixed by law. They knew when the thirty days would expire. If they might remain passive, until called upon, and the officer had given them a further indulgence of two days, we find no authority for discharging them from the obligation of their bond. They should then have produced the body, that it might be taken and imprisoned under the execution.

- By the return of the officer,, under date of the fifil of February, 1839, it appears that, he had made diligent search for the body of the debtor, without being able to find it, and that he had called upon the sureties to deliver it up, notifying them that the creditor had - elected, within thirty days from the disclosure, to take the body, but that they neglected to comply with his demand. If this notice and demand is not to bo referred to an earlier day, and was necessary to charge the defendants, we cannot say that it was too late. And upon a view of the whole case, it appears to us, that the plaintiff is entitled to recover.

The bond is subject to chancery, as was decided in Wilson v. Gillis & al. 15 Maine R. 55. But no facts are here agreed, from which it can be deduced that the creditor’s damages should be reduced below the amount of his execution, interest, and costs. That was allowed as the measure of damages, in Cordis & al. v. Sager & al. 14 Maine R. 475, where no extenuating circumstances appeared.

Exceptions overruled.