Inhabitants of Norridgewock v. Sawtelle

• Decision Date: 03 August 1881
• Citation: 72 Me. 484
• Parties: INHABITANTS of NORRIDGEWOCK, v. EDWARD SAWTELLE, Administrator.
• Court: Maine Supreme Court

72 Me. 484

INHABITANTS of NORRIDGEWOCK, v. EDWARD SAWTELLE, Administrator.

Supreme Judicial Court of Maine.

August 3, 1881

ON REPORT.

The law court to enter such judgment as the law and the facts require.

This was an action of debt on a recognizance to prosecute an appeal from the decision of a trial justice in a civil action, entered into by the defendant's intestate, as surety for the debtor, Gould, in accordance with R. S., c 83, § 18.

The judgment of the appellate court was for the plaintiffs.Upon this judgment execution issued, and the debtor, Gould, was arrested on it and gave a six month's bond, provided by R. S., c. 113, § 24.

The six months had expired before this action was commenced, within the six months the debtor cited the plaintiff to attend to his disclosure according to c. 113, and the creditor not appearing to select a justice, the officer who arrested the debtor, selected as a justice an inhabitant of the plaintiff town.The justices heard the disclosure and administered the oath prescribed in § 30.

Walton and Walton, for the plaintiffs, upon the question considered in the opinion, cited: R. S., c. 83, § 18;Bates v. Tallman, 35 Me. 275.

John H. Webster, for the defendant.

By the common law the arrest of a debtor on execution, when connected with a release or discharge of the debtor by the creditor, amounted to plenary evidence of satisfaction of the debt;Miller v. Miller,25 Me. 110, and cases there cited.

It is the same now with the exception of cases provided for by statutes, which being in contravention of the common law are to be construed strictly.The debtor Gould was arrested and gave a perfectly good statute bond.He undertook, it is true to disclose, but one of the justices was one of the creditors, therefore incompetent to sit;R. S., c. 113, § 28.Had the creditor called on the bondsman or sued the bond before it was barred by statute, the whole execution would have been collected and this defendant relieved, § 53.

The defendant's intestate was surety for Gould on his appeal, and as such, liable for the costs arising after the appeal, and after judgment the creditor had his election to collect the cost immediately of the surety, or pursue Gould with the execution until Gould's body should be freed from arrest, or the execution discharged.He has pursued Gould till the execution is discharged.That discharges this defendant as effectually as if the creditor had taken a promissory note for the amount, and discharged the execution with his own hand;Springer v. Toothaker,43 Me. 381;Cummings v. Little,45 Me. 183;Baker v. Briggs,8 Pick. 122.

APPLETON C. J.

In a suit pending before a trial justice between the plaintiffs and one M. M. Gould, the latter appealed from the judgment rendered against him.The appellant with the defendant's intestate recognized to the plaintiff, " with condition to prosecute the appeal...