Lincoln telegraph. [volume] (Bath, Me.) 1836-1846, 1838-12-20

and Lowell.
The Gov. and Council meet again on the
ooh inst. and will remain in session till the
new Legislature is organized.
BENJAMIN KNIGHT, as. Moses NoRToN
d AL. This case was argued at the April
Term of the Supreme Judicial Court in
the County of Gu mberand, 1888, and the
opinion Of the Court wa S drawn up aud de-
livered at at the November Term of the
Court in that County, 1898. BY SHEPLEy,
1.-THE Acts for the relief Of poor debtors
have been SO numerous, and SO defective in
their PROVISIONS, that that it is no matter OF
surprise, that they have been the occasion
of many suits. The Act of 1885, C. 1876,
Tin the edition ofGlazier g. Co. chap. TIT.
Reporter.) provided that debtor arrested
or imprisoned on execution upon giving
bond conditioned, within six mont he
would cite the creditor and submit himself
i to examination and take the oath prescribed
by the tenth section, or pay the debt interest,
cost and fees should be discharged; but no
express provision was made to whom the
bond should be taken, nor was any mode
pointed out for citing the creditor, nor any
authority given TO notify his agent or attorn-
ey, in case of his not being resident with
in the State. The design Of the Act of ] g.
36,c. 245, (Glazier's Ed. C. 767-Repor-
ter.) seems to have been, among other
things, to provide aremedy for those de-
fects. And the fourth section provides,
that the bond required by the eighth section
Of the Act of 1885, shall run 10 the credit
or; and the fifth section provides, that auy
person arrested or imprisoned on any exc
cution, or warrant for taxes, by the giving
the bond referred to in the forth section,
which is the same required by the eighth
section of the Act Of 1885, shall be dis
charged; and that the debtor giving bond,
as aforesaid, may cite the creditor and take
the oath provided in the seventh section,
which oath is substituted for that contain
ed in the tenth section of the Act of 1885.
How is the debtor to cite the creditor !?
The only provision in reference to it is in
the same fifth section in these words 'and
in other respects complying with the pro-
visions OF the ninth and tenth sections of
the Act to which this is supplementary"
The ninth section referred to provides, that
person committed and in prison shall
make written complaint to the keeper,
who shall apply to Justice of the Peace
ofthe County, by whom the notification is
to be made out, which is 10 be served upon
the creditor, or his attorney, in the manner
there provided. The design seems TO have
been to adopt in all respects the same
mode for the application, notice, service,
and subsequent proceedings, as is provided
in cases when the debtor is in prison. And
it is practicable to do this, for the debtor
will not be obliged to be committed to ena-
bic him to make such an application to the
keeper to whose custody he should have
been committed, if he had not giyen the
bond. He has but TO present himself, be-
ing at large. to the keeper to make the re-
quest or complaint and the statute i'm
pliedly at least authorizes the keeper there
upon to proceed as he would, if in his
custody. In conformity to the provisions
of the tenth section referred TO, the cer,i6-
cate that the debtor has taken the oath
should be lodged with such prison keeper,
instead with the Clerk, Or Magistrate.
issuing the execution.
In this case the debtor himself applied to
the magistrate instead of to the keeper OF
the gaol. and the certificate was lodged
with the Clerk instead ofthe prison keeper.
Ii may be said, that the notice would be
equally effectual, whether made out upon
the application of the debtor, or the prison
keeper and it undoubtedly would be so,
and other modes Of giving notice, equally
.efIectual, might be named but the answer
is. these are moi the modes provided by the
legislature, and the Courts cannot deter
nine, that other modes, apparently equally
satisfactory, shall be substituted for those,
which the law has prescribed.
The preliminary proceedings must be In
conformity to the provisions of the statute
to give theJustiCes jurisdiction and author
ize them to act This appears to have been
the intention of that provision in the tenth
section which declares, that the Justices
shall "examine the notification and return,
and irregular and in due form, may hear, "
implying that if not regular and in due
form, they have no authority to proceed.
And snch was the decision in the case OF
Putnam VS.. Longley-ll Pick. 4S7.
The case of Agry VS.. Belts, 3 FART. 4l5,
decides. that the certificate of the magis-
lrates is conclusive, as to the fact of notice,
but not as to the form and regularity Of the
papers issued.
The rule for assessing damages adopted
IN the case of Winthrop VS.. Dockendorf, 3
Green. 1856, cannot be applied here. In
that case the statute was considered, as
| au,bcr;z;no a iudoment accordinu tn enuifv