Moody v. Clark

27 Me. 551 | Me. | 1847

The opinion of the Court, Whitman- C. J. not having heard 'the argument, and taking no part in the decision, was drawn up by

Tenney J.

This action upon a poor debtor’s bond is defended upon the ground, that the debtor was admitted to his oath by a competent tribunal as appears by the certificate of Manasseh Sleeper and David W. Lofhrop, two justices of the peace and quorum, which was read in evidence without objection. The plaintiff denies the authority of the two magistrates, who administered the oath, and introduced the certificate of Solyman Heath, another justice of the peace and: quorum, and who was selected by the creditor as one of the-justices, and who acted with Sleeper, the one selected by the debtor, and with Lothrop, selected by a deputy sheriff after the disagreement of the other two, upon the question of the sufficiency of the notice of the debtor to his creditor. The former certificate states, “ that the said Heath and Sleeper do not. agree upon the selection of a third justice,” and that thereupon, the officer made the selection; in the latter, after stating the disagreement touching the notice, it is said, “ Whereupon without any attempt on the part of said justices to select a-third justice, or even naming one, the debtor, at the suggestion of M. Sleeper, went out for a third justice; and the said debtor and A. Hayford, a deputy sheriff, returned with David W. Lothrop, Esq., and by them, (the said Sleeper and Lothrop,) said debtor was admitted to the poor debtor’s oath as prescribed in chap. 148 aforesaid, the said Heath, one of said justices,, dissenting fron the other justices in the whole proceedings in; the matter.

After the disagreement between the members of the tribunal'1 as first constituted, it became necessary that a third should be added. The two had the authority to select him; if they were unable to agree in the selection, the duty of making the choice devolved upon another. The law has not prescribed, any time, that must intervene between that when it is ascertained, that a third magistrate must be called, and the time when an officer can proceed to make the choice; nor what the two shall do or omit to do, to constitute an inability to agree. If it should be thought the two justices manifested an unreasonable captiousness, or obstinacy in reference to the exercise of this part of their duty, it may nevertheless amount to a failure to agree upon the third magistrate. The statute requires no announcement from them, that they are unable to agree, so that the debtor can know the moment, when the power has gone from them, and is to be exercised by an officer. If time should be taken in nominating different magistrates by one and the other of the two first selected, without agreeing upon any one, it might perhaps be said with propriety, that they were “ unable to agree.” But if instead of that neither would give to the other, the name of any one, it might be very unreasonable, but would it not be evidence of inability to agree, as much as when one should refuse to confirm the other’s nomination? It is certainly strong proof that the two were unable to agree, when they did not agree, after a full opportunity had been enjoyed by them to do it, had they been disposed to improve it.

The debtor had his rights and was entitled to have the tribunal filled; if those in whom was the power to make the choice, omitted to do it, he might suppose, they were unable to do it, and he would proceed to have the selection made by an officer. If the two justices had chosen the third before the one who afterwards acted had taken his seat, the latter might be bound to yield his place to the former. But when Mr. Lothrop appeared, nothing of the kind had taken place, and he had authority to act as a member of the tribunal.

It is insisted, that the justice selected by the deputy sheriff, had no authority to act, further than in the settlement of the question, on which the disagreement took place. The two justices who first constitute the tribunal, in case of disagreement, “ may select a third, and a majority shall decide.” The decision, which a majority are empowered to make is not limited to any particular question, which may arise. — Such a construction might be attended with great inconvenience. — If the third justice should retire after the first question on which the others should entertain different opinions should be decided and afterwards another disagreement should occur, a fourth justice would be or might be necessary and so to an indefinite number. — It is manifest, that it was intended, the new magistrate should act, till the final decision.

The exclusion of the testimony, to corroborate the certificate of Mr. Heath was not improper, as the action cannot be maintained, on the ground that every fact therein shown is true.

The point, that the justices were not shown to be inhabitants of Belfast was not taken at the trial, and it cannot now be raised. Exceptions overruled.