The opinion of the Court was delivered at the May Term, 1848, as drawn up by
Sheplev J.This is another of those numerous suits upon bonds made by poor debtors to procure their release from an arrest on execution. There appears in many of the cases a strange propensity to neglect or disregard the plainest provisions of the statute.
It appears by the bill of exceptions in this case, that the Court correctly considered, that the defendants had failed to prove a performance of the conditions. Yet the Court permitted them to introduce proof and to have the damages assessed by a jury. This, it would seem, must have been done inadvertently, and without noticing, that the statute, c. 115, § 78, had been amended by the act passed on March 18, 1842, c. *10531, § 9. That amendment was noticed by this Court in the case of Burbank v. Berry, 22 Maine R. 483; and it was determined that it conferred upon the Court again the power to assess the damages, upon the forfeiture of such a bond. This was again repeated in the case of Bales v. Dow, 24, Maine R. 211. The whole testimony introduced respecting the value of the note, will thereby be excluded as having been incorrectly received.
The creditor was under no obligation to accept the promissory note disclosed upon the terms offered in the disclosure. They would have imposed upon him obligations, differing from» those imposed by the statute, on acceptance of the note under its provisions. By its provisions he would have become on the acceptance of it, the purchaser for a sum certain. By accepting it, under the offer made, he would not, but must have accounted for the amount collected, although the collection might have occasioned trouble and expense. Taking under the provisions of the statute as a purchaser, he might have compromised and discharged the debt upon payment of a part. Had he accepted it under the offer made in the disclosure, he could not have done so safely without the consent of the person, from whom he had received it.
The disclosure does not shew, that the note was not of any value. The debtor is not made the judge of its value; others are to be selected or appointed to determine it according to the provisions of the statute.
There is no proof of any agreement made between the creditor and the debtor, to have the value of the note applied in discharge of the debt, nor of any appraisement’of it. It should have been disposed of according to the provisions of the statute, c. 148, § 29.
If the creditor or his attorney does not lead the debtor or the justices into any illegal course of proceeding, but merely sits in silence and allows them to pursue their own course, the rights of the creditor cannot be considered as thereby waived or forfeited.
*106The justices are not authorized by the statute, c. 148, § 31, to make out a certificate for the discharge of the debtor, until the property disclosed by him has been disposed of or secured as provided in the two preceding sections. The plaintiff appears to be entitled to prevail and to have his damages assessed according to the provisions of c. 148, § 39. But this Court can now only sustain the exceptions and grant a new trial.
Exceptions sicstained.