disclosure is true, and discovering nothing inconsistent with his taking the oath prescribed in the thirtieth section, chapter one hundred and thirteen of the Revised Statutes, have administered said oath to him, and we therefore order that said D. F. be discharged from his arrest. J. S. H., selected by the debtor. The above order must be indorsed on the writ.19 58. Return of a discharge. [Name of county], ss., [date]. By virtue of the within writ, I arrested the body of the within-named D. F. [defendant], and thereupon, upon his request, and after due notice by him to the within-named creditor, took the said D. F. [defendant] before two disinterested justices of the peace and quorum, in and for said county, in order that he might be released from arrest by disclosing the actual state of his affairs. And such proceedings were thereupon had, that said justices made an order for his discharge hereto annexed, to which reference is made; and I hereby discharge the said D. F. [Official signature.] ARREST ON MESNE PROCESS AND DISCLOSURE AFTER JUDGMENT. 19a 59. Return of arrest and bond taken. [Name of county], ss., [date]. By virtue of the within writ, I arrested the body of the within-named D. F. ]defendant], who thereupon tendered to me the bond which is herewith returned; whereupon I released the said defendant from arrest. FEES, &c. [Official signature.] - 60. Fifteen-days' bond, to be returned with writ. Know all men by these presents, that we, -, of -, in the county of, as principal, and —, as sureties, are jointly and severally holden and stand firmly bound and obliged unto [the plaintiff's name and addition], in the full and just sum of [double the sum for which he is arrested or imprisoned] dollars, to be paid unto the said [plaintiff), his heirs or assigns. To the which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents.. Sealed with our seal. Dated at day of, in the year of our Lord one thousand eight hundred and seventy The condition of this obligation is such, that whereas the above bounden was attached at the suit of the said commenced to be heard and tried before the next to be holden at ; on the day of, within and for the county of —, A. D. 18-, as by the original writ or process bearing date day of —, A. D. 18– (reference thereto being had), more fully appears. the Now if the said shall within fifteen days after rendition of judgment against him, or after the adjournment of the court in which said judgment is rendered in said suit, notify the creditor, his agent or attorney, to attend at a certain place in the county, 19 R. S. c. 113, § 6.-19a R. S. c. 113, §§ 15 to 40. at a time not more than thirty, nor less than fifteen days after such notice, for the purpose of disclosure and examination in accordance with the provisions of R. S. c. 113, and shall then and there submit himself to examination, make true disclosure of his business affairs and property on oath, and abide the order of the justices of the peace and quorum thereon, then the above obligation to be void, otherwise to remain in full force. Signed, sealed, and delivered in presence of Name of county], ss. D. F. [L. S.] L. S. C. D. [L. S. We the subscribers, disinterested justices of the peace and quorum for said county, do approve of the sureties named in the foregoing bond. [Signature], selected by [plaintiff]. 66 66 [defendant]. or, I, [plaintiff's name], approve of the sureties named in the foregoing bond. [Signature.] A "fifteen-days' bond" may be given for a release from arrest, whether the action be in tort or assumpsit.20 61. Application to the creditor after judgment. To, esquire, one of the justices of the peace, within and for the county of . of Whereas I, the undersigned, have been arrested in the county of, on a writ in favor of in the county of which was returnable to the -, which was holden at, in the county of on the Tuesday of, A. D. 18—, and have given the bond required by law, with the condition that I would, within fifteen days after the rendition of judgment, or after the adjournment of the court in which it is rendered against me in said suit, notify the creditor to attend at a certain place in the county, at a time not more than thirty, nor less than fifteen days after such notice for the purpose of disclosure and examination in accordance with the provisions of R. S. c. 113, and then and there submit myself to examination, make true disclosure of my business affairs and property on oath, and abide the order of the justices thereon. A. D. 18-, at Now, therefore, I, the undersigned, within the time specified in said bond, hereby request you, the said justice, to notify the said, the creditor, to appear before two justices of the peace and quorum, at the office of -, in —, in said county, on the day of of the clock in the noon, at which time and place I will submit myself to examination, make true disclosure of my business affairs and property on oath, and abide the order of the justices thereon, and where he, the said creditor, may be present, and object if he shall see cause, and may select one of the justices. [Signature of debtor.] Dated at -, this day of —, A. D. 18—. 20 Richards v. Morse, 36 Me. 240. To 62. Citation. STATE OF MAINE. [Name of county], ss. [name of creditor], in the county of GREETING. [L. S.] In the name of the State of Maine, you are hereby notified of the desire of the above-named debtor as expressed in the foregoing application; and you are hereby cited to appear before two justices of the peace and quorum (if you shall see cause), at the time and place, and for the purposes mentioned in the foregoing application. day of Given under my hand and seal at said —, this the year of our Lord one thousand eight hundred and [-], Justice of the Peace. in 63. Return of service of citation. [Name of county], ss., [date]. I made service on the creditor within named, by reading the within application and citation to him, [or, by leaving an attested copy of it at his place of last and usual abode; or, by giving it to him in hand fifteen days at least before the time appointed for the examination]. [Official signature.] If the creditor is dead at the time of the service, it may be served as above on his executor or administrator, if to be found in the State, and if not, such copy shall be left in like time with the clerk of the court, or magistrate who issued the execution.21 If the creditor is alive, the citation may be served on him, or the attorney of record in the suit or any known authorized agent of the creditor. And if there be more than one creditor, service on one is sufficient.21 64. Form of poor debtor's oath.22 I, - do solemnly swear [or affirm] that I have not any real or personal estate, or interest in any, except what is exempted by statute from attachment and execution, and what I have now disclosed; and that since any part of this debt or cause of action accrued, I have not directly or indirectly sold, conveyed, or disposed of, or intrusted to any person, any of my real or personal property, to secure it, or receive any benefit from it to myself or others, with an intent to defraud any of my creditors. So help me, God; [or, this I do under the pains and penalties of perjury.] 65. Form of discharge. [Name of county], ss. To the sheriff of the county of —, or his deputy, and to the keeper of the jail at [or, to any coroner or constable]. [L. S. We, the subscribers, two disinterested justices of the [L. S.] peace and quorum in and for said county of -, hereby 21 R. S. c. 113, § 27.- certify, that D. F., a poor debtor arrested on a certain writ, in favor of A. B., of, commenced and to be heard and tried before L. A., Esquire, a trial justice within and for said county, at a justice court to be holden at the office [or dwelling-house] of L. A., the said justice, on the day of, at ten o'clock in the forenoon, and who was enlarged by giving bond to the creditor aforesaid, has caused A. B., the creditor aforesaid, to be notified according to law, of his desire to take the benefit of the one hundred and thirteenth chapter of the Revised Statutes; that in our opinion, he is clearly entitled to the benefit of the oath prescribed in the 30th section thereof; and that we have, after due caution, administered it to him. day of ―, in the year CHAPTER XI. TENDER, ENTRY, AND PROCEEDINGS IN COURT BEFORE PLEA. 1. A tender, with the costs then accrued, may be made after action brought, and before its entry, to the plaintiff or his attorney, with the same effect as if made before action brought. In actions against towns, founded on injury to the person or damage to property from defect in ways, a town may make a tender before the commencement or entry of the action, or offer to be defaulted for a specified sum, with the same effect as in actions on contract.1 (a) To constitute a tender the money must be produced and actually offered to the creditor; 2 though the production may be dispensed with, if the party is ready and willing to pay the sum, and is about to produce it, but is prevented by the declaration of the creditor that he will not receive it; the money or other things must be actually at hand, and ready to be produced immediately, if the tender should be accepted; if a greater sum is tendered than is due, it must be so made that the creditor may take therefrom the sum that is actually due; the tender must be unconditional and unqualified; it must be made to the creditor himself or to his agent, clerk, attorney, or servant, who has authority to receive the money. 4 1R. S. c. 82, § 22.-22 Greenl. Ev., § 602.-3 Ibid., § 603.— Ibid., § 604.— Ibid., § 605.-6 Ibid. § 606. (b) The plaintiff may avoid a tender by a subsequent demand and refusal. The demand must be of the precise sum tendered, and must be made by himself in person, or by some one authorized to receive the money and give a discharge for it." (c) The person making the tender is the only one upon whom a demand can be made; hence if, after a tender and refusal, the debtor, with notice to the creditor, deposits the money with a third person, to be paid to the creditor whenever he shall call for it, the creditor is under no obligation_to_the depositary, and if the debtor, upon a subsequent demand, does not pay or tender the sum due, he loses the benefits of the previous tender.8 (d) The demand must be made at a reasonable time and place.s (e) Where money is tendered and brought into court, and the plaintiff takes it out, but proceeds for more; and the jury find the sum tendered insufficient, their proper course is to return a verdict for the whole sum,due, without regard to the sum deposited with the clerk, which latter sum the court will deduct, and render judgment for the residue.9 (f) Where the principal and sureties on a poor debtor's bond are sued, but no service made, a tender of the amount of the joint liability, including the cost of the writ, will be sufficient, although the writ may have been sent away by the attorney for the purpose of having it served, if he has time to recall it before it is actually served.10 (g) Chapter eighty-two, section twenty, of the Revised Statutes, authorizing a tender of amends in actions involving trespass on lands, has reference to the act of trespass, and not to the reasons or motives of the trespasser.11 2. No writ shall be made returnable before any trial justice at an earlier hour than nine o'clock in the forenoon, nor later than four in the afternoon. No judgment of such justice shall be valid unless he shall be present with the plaintiff's writ at the place, and within one hour after the time therein named, unless the case is continued by some other justice, as provided in section twelve, c. 83, R. S.12 3. The justice may enter judgment on nonsuit or default against the party failing to appear at the expiration of one hour after the time of return set forth in the writ; but may, in his discretion, on motion of either party, strike off the same within twenty-four hours thereafter, upon such terms as he deems reasonable.18 7 Ibid., § 608.-8 Town v. Trow, 24 Pick. 168.-9 Dresser v. Witherle, 9 Me. 111.10 Call v. Lothrop, 39 Me. 434.-11 Brown v. Neal, 36 Me. 407.-12 R. S. c. 83, § 10.15 R. S. c. 83, § 11. |