Lewiston Co-Op. Soc., No. 1 v. Thorpe

• Decision Date: 11 December 1897
• Citation: 91 Me. 64,39 A. 283
• Parties: LEWISTON CO-OP. SOC., NO. 1, v. THORPE.
• Court: Maine Supreme Court

39 A. 283

91 Me. 64

LEWISTON CO-OP. SOC., NO. 1,

v. THORPE.

Supreme Court of Maine.

Dec. 11, 1897.

(Official.)

Report from supreme judicial court, Androscoggin county.

Action by the Lewiston Cooperative Society, No. 1, against George Thorpe. Judgment for plaintiff on record.

This was an action on account annexed to the writ, to recover the sum of $41.34, for groceries and provisions.

Date of writ, June 18, 1896. Plea, general issue, with brief statement as follows, to wit:

That he claims to set off against the plaintiff's claim the sum of $41 due him from said plaintiff according to the following account:

Lewiston Cooperative Society, No. 1, to George Thorpe, Dr.

1896.

Jan. 18. To amt. due in shares held by George Thorpe in the Lewiston Cooperative Society, No. 1, as per account stated .............................. $40

To interest on same to June, 1896, 5 mos.. 1

$41

The defendant was arrested on a capias writ by the plaintiff; the writ being returnable to the Lewiston municipal court.

In that court the defendant filed the following motion to dismiss the action:

"State of Maine. Androscoggin—ss.: Lewiston Municipal Court. Lewiston Co-operative Society, No. 1, vs. George Thorpe. And now comes the said defendant, and moves that the plaintiff's writ be quashed, and that said action be dismissed, because he says that, the service of said writ being by arrest, there was no sufficient affidavit indorsed upon said writ prior to said service to justify said service, or to give this court jurisdiction. And defendant further prays for his costs. By Savage & Oakes, his Attorneys."

Affidavit on writ: "1, William Widdall, president of the Lewiston Co-operative Society, No. 1 (a corporation duly established by law), the within-named creditor, make oath and say that I have reason to believe and do believe that George Thorpe, the within-named debtor, is about to depart and reside beyond the limits of the state, and to take with him property or means of his own exceeding the amount required for his immediate support, and that the demand named in the within process, or the principal part thereof, amounting to at leastten dollars, is due to the within-named creditor. William Widdall, President.

"Androscoggin—ss.: June 18, 1896. Subscribed and sworn to by the above-named William Widdall, who also made oath that he is president of the within corporation. Before me, Frank A. Morey, Justice of the Peace."

The foregoing motion was overruled by the court, and, judgment having been rendered in favor of the plaintiff for the amount sued for, the defendant thereupon appealed to this court, sitting at nisi prius.

After the evidence was drawn out before the jury in the court below, the case was reported to the law court. The parties stipulated that the law court should determine first the question arising above, on account of lack of jurisdiction by reason of the defective affidavit, etc., and, if the motion should be sustained, then judgment was to be rendered for the defendant. If the motion should not be sustained by the law court, then that court was to render such judgment as the legal rights of the parties might require, upon so much of the evidence as the court should find to be legally admissible.

D. J. McGillicuddy and F. A. Morey, for plaintiff.

H. W. Oakes, for defendant.

STROUT, J. To justify arrest upon mesne process, on contract, the statute requires "the creditor, his agent or attorney," to make oath to a belief in the facts enumerated in the statute. The oath in this case...