CHAPTER XVIII.

OF ARRESTS AND BONDS ON EXECUTIONS, AND DISCLOSURE.

1. No person shall be arrested on an execution issued on a judgment founded on a contract, express or implied, where the debt is less than ten dollars, exclusive of costs; or on a prior judgment on contract, where the amount of the original debt remaining due is less than ten dollars, exclusive of costs; and the form of the process shall be varied accordingly.1

2. In all other cases, except where express provision is by law made to the contrary, an execution shall run against the body of the judgment debtor; and he may be arrested and imprisoned thereon for the purpose of obtaining a discovery of his property wherewith to satisfy it, as hereinafter stated.2

3. When so arrested, he may, without giving bond, disclose as provided in § 24, c. 113, R. S., by giving notice of the time and place appointed therefor, to the creditor or his attorney, at least twenty-four hours for every twenty miles' travel from his residence thereto. The debtor shall pay the officer for serving the notice and keeping him from the arrest to the disclosure, before he can be discharged.

4. A debtor, committed on execution, may disclose thereon, at the jail, in the manner and on the notice aforesaid, which may be served by the jailer or other officer; and, besides the other fees, shall pay the jailer's fees before he can be discharged.*

5. If the debtor, in either case, is not permitted to take the oath, he shall be remanded; but if permitted, the justices shall administer the oath prescribed in section thirty, and give him the certificate provided in section 33, c. 113, R. S.; and the officer shall make return thereof on the execution; and no subsequent execution. shall authorize his arrest.5

1R. S. c. 113, § 19.-2 R. S. c. 113, § 20.-3 R. S. c. 113, § 21.-4 R. S. c. 113, 22.-R. S. c. 113, § 23.

6. When a debtor is arrested or imprisoned on execution, he may be released by giving bond to the creditor, in double the sum due thereon, with surety or sureties approved in writing by the creditor, or by two or three justices of the peace and quorum, of the county where he is arrested or imprisoned, selected and proceeding as provided in section forty-two, conditioned that he will, within six months thereafter, cite the creditor before two justices of the peace and of the quoruin; submit himself to examination, and take the oath prescribed in section thirty; pay the debt, interest, costs, and fees, arising in said execution; or deliver himself into the custody of the keeper of the jail to which he is liable to be committed under said execution."

(a) The officer who arrests a debtor upon an execution is bound to accept a bond, made in all respects in conformity to the true intent and meaning of the statute, with sufficient surety or sureties approved as the statute requires, but still is bound to act in good faith, as well towards one party as the other; and if he knew or had good reason to believe that a fraud had been practiced, and that the sureties in the bond tendered to him by the execution debtor were utterly worthless, he would not be bound to receive it, although the sureties were approved by two justices; and should he knowingly accept such bond, and thereupon liberate the debtor, he would be guilty of a breach of official duty. The justices, before certifying, are bound to know, or to possess themselves of knowledge, that the individuals they would certify to be sufficient, are actually so.6

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(b) The bond must be executed by the debtor as well as by the surety, or it will not be a good statute bond. And a bond containing conditions unauthorized by the statute then in force is not valid as a statute bond.8 If it require the debtor to cite the creditor before "two justices of the peace, quorum unus," instead of before "two justices of the peace and of the quorum," it is only valid at common law. But a condition that the "debtor will deliver himself and go into close confinement," instead of that he will" deliver himself into the custody of the keeper of the jail," does not make the bond a common-law bond.10 It is not a joint relief bond given by all the debtors as principals, but it is a separate bond given by each, which, under the statute, entitles to a release from arrest; but a joint bond would be valid at common law, and each principal obligor is a surety for his co-obligor.1 An approval in writing is essential to a statute bond. 12 A bond given by a debtor who is correctly

R. S. S. c. 113, § 24.-6a Dyer v. Woodbury, 24 Me. 546.- Howard v. Brown, 21 Me. 385.-8 Ware v. Jackson, 24 Me. 166.-9 Hovey v. Hamilton, 24 Me. 451.10 Hatch v. Lawrence, 29 Me. 480.-11 Hatch v. Norris, 36 Me. 419.-12 Randall v. Bowden, 48 Me. 37

described in an execution against two, one of whom is erroneously described, is valid.18 If it does not appear that the justices who approved a poor debtor's six months' bond were selected in accordance with the statute, it cannot be deemed a statute bond.14

(c) For the purpose of making a computation of time of performance, the obligors are bound by the date of the bond, and recital of the day of arrest, although the bond was in fact executed on a subsequent day,15 And where the surety was truly informed as to the date of arrest and bond, but misinformed, but with no fraudulent design, as to the time when by its terms the conditions must be performed, he cannot be relieved from his liability by the terms of the bond.15

(d) When a debtor has saved a breach of the bond by delivering himself into the custody of the keeper of the jail, he cannot be made liable on his bond by reason of any negligence or misconduct of the jailer.16 A surety has no authority to surrender and deliver his principal to the jailer against the principal's will;17 and a legal delivery only, and not an illegal commitment, will constitute a performance.17

(e) The discharge of a poor debtor from arrest or imprisonment by giving a bond, is not a satisfaction of the judgment, and does not impair the rights of the creditor to obtain satisfaction out of any property or estate of the debtor not exempted by law. The bond is only a substitute for the detention of the body, and not a satisfaction of the judgment.17

(f) To save the forfeiture, some one of the alternative conditions must be performed within six months, unless done at the request of the creditor thereafter. 18 Thus a disclosure commenced on the last day of six months, and lasting until three o'clock of the succeeding morning, when it was concluded and the poor debtor's oath administered, will not save a forfeiture of the bond, unless the delay was had at the request of the creditor, or it was waived by him; 19 a creditor's participation in the examination of the debtor after the expiration of the six months, does not constitute a waiver.19

(g) But if the debtor has taken the oath according to the terms of the bond, which is not a statute bond, this will be considered a performance, although the proceedings were not in conformity to the statute.20

(h) When, at the time and place fixed by the citation for the disclosure, the justices duly chosen by the parties present, disagreeing as to the sufficiency of the service of the citation, selected a third justice, and a majority of the court thus constituted, holding the service insufficient, refused to hear the

13 Blake v. Blanchard, 48 Me. 297.-14 Guilford v. Delaney, 57 Me. 589.15 Wing v. Kennedy, 21 Me. 430.--16 Rollins v. Dow, 24 Me. 123.-17 Woodman V. Valentine, 24 Me. 551.-17a Spencer v. Garland, 20 Me. 75.-18 Morrison v. Corliss, 44 Me. 97; Moore v. Bond, 18 Me. 142.-19 Guilford v. Delaney, 57 Me. 589-20 Flowers v. Flowers, 45 Me. 459; Merchants Bank v. Lord, 49 Me. 99; Bell V. Furbush, 56 Me. 178.

disclosure, and recorded their proceedings; and the creditor's attorney, together with two of the magistrates, although notified that the debtor persisted in proceeding to disclose under the citation, notwithstanding the adjudication, withdrew, whereupon the justice originally chosen by the debtor, adjourned for a few minutes to procure the attendance of another justice; and the creditor neglecting to choose, one was duly selected in his behalf by a deputy-sheriff; and, before the tribunal thus constituted, the debtor submitted himself to examination, made a true disclosure of his business affairs and property under oath, and took the oath specified in his bond, Held, that there was a common-law compliance with the conditions of a bond which was good only at common law.21

(i) The death of the principal within the six months discharges the sureties,214 but insanity does not.216

7. Such bond is a valid statute bond, though the penalty varies not exceeding five per cent from the sum aforesaid; and judgment in a suit thereon shall be rendered according to section forty.22

8. A debtor who has given such bond may, within the time limited therein, give notice to the creditor or creditors of his intention to submit himself to examination and take the oath prescribed in § 30, c. 113, R. S., or if he is committed, or has delivered himself into the custody of the jailer, he, or the jailer in his behalf, may give such notice, and in either case such notice shall be in form substantially as follows:23 (Vide p. 237.)

(j) A creditor may waive his right to the statute notice of the debtor's disclosure. 2+

(c) If a debtor commence a disclosure after having given a six months' bond, and then deliver himself to the jailer, he must commence proceedings for a discharge de novo.27

9. The citation shall be served on the creditor, or one of them if more than one, or on the attorney of record in the suit, or any known authorized agent of the creditor, by any officer qualified to serve civil process between the same parties, by reading it to him, or leaving an attested

21 Bell v. Furbush, 56 Me. 178.-21a Lowell v. Haskell, 45 Me. 112.-16 Haskell v. Greene, 15 Me. 33.-22 R. S. c. 113 § 25.-23 Public Laws of 1873, c. 122.24 Page v. Plummer, 10 Me. 334.-27 Garland v. Williams, 49 Me. 16.

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, if the creditor is alive; otherwise it shall be so served 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.28

(1) If after the arrest of the debtor on execution, the creditor becomes a bankrupt without the knowledge of the debtor, a citation to the creditor is good without notice to his assignee,2 when the application and citation both allege that the creditor is out of the State, and that a person named is his attorney of record, service on such person is legal, in the absence of contradictory facts. A citation issued with a seal affixed to it, but which had accidentally fallen off when served by reading to the creditor, is a good service.31 Where the citation is directed to the creditor individually, and not as administrator, but his representative character sufficiently appears in the application which is annexed to and referred to in the citation, it is sufficient.32

10. The examination shall be before two disinterested justices of the peace and quorum for the county, who may adjourn as provided in § 5, c. 113, R. S., and shall examine the citation and return, and if found correct, examine the debtor on oath, concerning his estate and effects, their disposal, and his ability to pay the debt for which he is committed.88

(m) The adjudication of a tribunal duly organized for taking the disclosure of a poor debtor, upon the legality of a notice given to the creditor, is conclusive.34

(n) A justice who is not related by consanguinitv or affinity within the sixth degree to either party, and has no pecuniary interest in the result, may be considered "disinterested." 25 The mere fact of issuing a citation to a creditor does not disqualify the justice issuing the same from hearing the disclosure as a justice selected by the debtor.35 No man who apes honesty with a decent hypocrisy will permit himself to serve as a justice to hear the disclosure of a party whom he has aided in preparing for the disclosure.35

(0) A person who is an uncle to both parties is disqualified from acting as one of the examining magistrates, unless he acts by the written consent of the parties.35a

28 R. S. c. 113, § 27.-29 Hayes v. Kingsbury, 22 Me. 400.-30 Smith v. Bragdon, 48 Me. 101.31 Baldwin v. Merrill, 44 Me. 55.-32 Rand v. Tobie, 32 Me. 450.R. S. c. 113, § 28.-34 Baker v. Holmes, 28 Me. 153; Neal v. Paine, 35 Me. 158; Waterhouse v. Cousins, 40 Me. 333.-35 Lovering v. Lamson, 50 Me. 334; Cummings v. York, 54 Me. 386.-35a Bard v. Wood, 30 Me. 155.