Poor v. Beatty

78 Me. 580 | Me. | 1887

WaltoN, J.

Justices to hear a poor debtor’s disclosure can not be selected on Fast-day. Fast-day is classed among the ■dies non juridicus, and no court can be held on that day. If the time fixed for a court falls on Fast-day, the court is to stand ¡adjourned till the next day. E. S., c. 77, § 48. This .adjournment takes place by operation of law, and is not to be made by the court itself. There is to be no court on that day. The statute declares that the next day shall be deemed the first day for all purposes. It is to be deemed the first day for the purpose of selecting the justices and organizing the court, as well as the hearing of the debtor’s disclosure. It is quite as important a part of the proceedings. To meet and select the justices on Fast-day, would as clearly constitute an interruption of the proper observance of the day as if the whole proceedings were completed on that day. The presence of the parties or their attorneys would be necessary, and the presence of the magistrates, and perhaps it would be necessary to procure the attendance of an officer. Consultations must be had, notices given, and if the creditor should happen to live a considerable distance from the place appointed for the hearing, his time for the entire day might be consumed by these preliminary proceedings. We think the creditor can not be compelled thus to spend Fast-day. There is no necessity for it. If the time selected for the disclosure happens to fall on Fast-day, the whole proceedings are to stand adjourned till the next day by operation of law; and the next day, in the language of the statute, is to be deemed the first day "for all purposes,” — -for the purpose of selecting the justices, as well as the hearing of the disclosure. The disclosure in this case having been had before justices selected on Fast-day, in the absence of the plaintiff, it constitutes no defence to the action; and the plaintiff is entitled to recover the amount of his execution, costs, and fees of service, with interest, as provided in the R. S., c. 113, § 40. The case relied upon by the defendants as establishing a different rule for the assessment of the damages, (Foss v. Edwards, 47 Maine, 145,) was expressly overruled in Hackett v. Lane, 61 Maine, 31.

Judgment for plaintiff. Damages tobe assessed at nisi prius.

Peters, C. J., Virgin, Libbey, Emery and Haskell, JJ., concurred, .