47 Me. 28 | Me. | 1859
The opinion of the Court was drawn up by
The condition in the bond in suit has been broken, unless -the debtor has complied with the requirements in reference to a disclosure and oath. He produces a copy of a record signed by two justices of the peace and quorum of Aroostook County, setting forth that after due and legal proceedings and adjudication, they administered to the debtor the oath required by law.
The plaintiff objects to this record as a discharge, because, as he says, the two justices who acted were not authorized to act, and therefore the discharge was invalid and not a compliance with the conditions of the bond. The facts proved are, that the creditor was present by attorney at the time and place named in the citation, and selected a justice who was present and ready, and offered to proceed in the disclosure. The debtor objected to the justice thus selected by the creditor, because he did not reside in the town where the disclosure was to be made, or in an adjoining town. The fact was, that he did not so reside. Thereupon the justice selected by the debtor, considering that the creditor had refused or neglected and unreasonably delayed to select a justice, adjourned to enable the debtor to procure the attendance of a justice; and on the next day, within twenty-four hours, another justice appeared, who was selected by an officer, according to law. The two justices, thus appointed, proceeded to act and to administer the oath and give the discharge.
If the law, at the time of the disclosure, did not require that the two justices should reside in the town, or in an adjacent town, then it is clear, and not disputed, that the exigency had
By referring to the 46th section of the 148th' chapter of the R. S. of 1841, as printed in the volume, we do not find the provision in question, in reference to the residence of the justices. But this section was amended by the insertion of that provision, by Act of Eeb. 23, eighteen hundred and forty-four, c. 88. The repealing Act of 1856, after providing in the 1st section, for the selection of justices, enacts, that “section 46, of chapter 148, of the Revised Statutes, and chapter 88, of the Public Laws of eighteen hundred and fortyyire, are hereby repealed.” It is admitted that there was no Act in the Public Laws of 1845, which was numbered chapter 88, and no statute of that year on the subject of poor debtors.
We deem it unnecessary to decide the question, whether a naked repeal of an Act, described only by the year of its enactment and the chapter of the volume, can be applied to an Act of a former year, numbered as described, and operate to repeal that Act. There can hardly be a doubt that there is an error in reference to the year; because the first section of the repealing statute refers to the subject-matter of the 88th chapter of the Laws of 1844, and the 46th section of c. 148 of the Revised Statutes, (which, it is admitted, is repealed by this section,) is almost identical with the first section of the law of 1856.
The case In re Boothroyd, 15 M. & W., 1, is very similar to this. In that case, a statute was referred to, in another statute modifying or repealing it, as the statute of 13 Geo. 3, reciting its title, which was identical with the title of a statute of 17 Geo. 3. The Court held that, as the title was set out and as there was no other statute so entitled, and no statute of 13 Geo. 3, which could be affected by the repealing Act, the
But we are satisfied that the question is not to be decided solely by reference to the words repealing the Act of 1845. This section, in the first place, repeals distinctly the 46th section of the 148th chapter of the Revised Statutes. This is admitted.
What did that repeal of the 46th section embrace ? What was the 46th section of the Revised. Statute in 1856, when the repealing Act was passed ? Was it only the words of the section as they stand in the printed volume, or did it include the section as it read after it was amended in 1844?
The Act of 1844, c. 88, it will be observed, does not contain any enactment of matter independent of the 46 th section of the Revised Statutes. It does not say that it is enacted that the justices selected shall reside in the town, &c; but only enacts, that the 46th section of the 148th chapter of the Revised Statutes shall be amended by inserting certain words, so that the section as amended shall be as follows : — “Sec. 46. In all cases,” &c.
It does not repeal that section. It only puts into it a certain provision, in certain words. It simply enlarges the section, retaining its identity as the 46th section of the Revised Statutes. It even retains its number, 46. It simply enacts that the 46th .section of the Revised Statutes shall remain as such 46th section, with certain words inserted' in different places; but it is still the 46th section. The title of the Act is “to amend the 46th section of the Revised Statutes.”
The Act of 1856 recognizes the fact of the continued existence of the 46th section. The question returns, what was repealed by the repeal;,of the aforesaid forty-sixth section of
If we hold that the 46th section, as it stands in the printed volume, is entirely repealed, and the new matter in chapter 88, of 1844, is unrepealed, we shall have only disjointed parts of sentences remaining, without any thing in sense or syntax to support them. This can not have been intended. The 46th section of c. 148, of the Revised Statutes, as amended by c. 88, of the laws of 1844, is repealed by c. 213, of the laws of 1856. The last named Act was in force when these proceedings were had, and their legality must be determined by the application of the provisions of that Act to the facts established.
No provision is there found in relation to the residence of the justices, and the only existing requirement was that the justices should be of the county. The creditor did not neglect or refuse to make such selection, but did select a proper person.
The contingency did not arise, which would have given a legal right to an officer to select, and therefore the selection made by the officer was an inoperative and void act.
The only remaining question relates to the damages to be assessed. By statute of 1848, c. 83, as construed in the case of Winsor v. Clarke, 36 Maine, 110, when a debtor had taken the prescribed oath before two justices of the peace and quorum, the damages to be assessed were the actual and real damage, and no more, although the magistrates had no jurisdiction for the purposes of the disclosure intended.
This decision was in 1853. In 1856, by c. 263, (R. S. of 1857, c. 113, § 48,) the Legislature revised the law and enacted, as one of the conditions, that the oath should have been allowed by and taken before justices “having jurisdiction
It is clear, as before shown, that in this case the justices, who acted, had not jurisdiction, and were not legally competent to act, and their proceedings were not a performance of the condition of the bond, and do not authorize the Court or jury to assess the actual and real damage. ..
Defendants defaulted.
Judgment for full amount of execution, costs and fees of service, with interest thereon, against all the defendants; and a special judgment against the principal, Hiram Brackett, for interest at 20 per cent, per annum, according to § 38, c. 113, of Revised Statutes-.