Baker v. Holmes

27 Me. 153

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1847
• Status: Published

Opinion

The opinion of the Court was by

Shepley J.

The case is presented upon an agreed statement. The suit is upon a bond made by a debtor and his surety, according to the provisions of statute, c. 148, <§> 20. Two justices of the peace and of the quorum, one chosen by the debtor and the other by a deputy of the sheriff, in the absence of the creditor, examined the notification, took the disclosure of the debtor, administered to him the oath, and gave him a certificate in the form prescribed by the thirty-first section of the statute.

When the tribunal composed of the two justices appears to have been duly organized so as to acquire jurisdiction of the case, its judgment, contained in the certificate declaring, that the debtor “ hath caused the creditor to be notified according to law,” is conclusive; and “ evidence proposed with a view to control it, is not legally admissible.” Carey v. Osgood, 18 Maine R. 152; Colby v. Moody, 19 Maine R. 111; Cunningham v. Turner, 20 Maine R. 436.

It is still insisted, that evidence may be admissible for the purpose of shewing, that the justices had no jurisdiction, to prove that a blank printed for a notice to the creditor, was filled out by a deputy of the sheriff. By the documents presented before them, they would appear to have jurisdiction. Those documents must have been regarded as valid by them until their validity was impaired or destroyed by extrinsic testimony. They could not hear such testimony without having jurisdiction over the case. If the testimony could be admitted, it might not therefore have such an effect as the argument supposes. But it appears to have been the intention of the framers of the revised, as well as of former statutes, in pari materia, to submit the question of the legality and sufficiency of the notice to the decision of the justices, and to make their decision conclusive. The statute, by such a construction, does not operate unjustly. For the creditor has an opportunity to make objections to the validity and sufficiency of the notice before the legally constituted tribunal. And there is little reason for a construction, that could allow him, when he appears in fact to have had notice, to omit to make his objections to its validity before the proper tribunal, and afterward to insist upon them, when it is too late for a surety, who may have been attentive, to cause a strict performance of his bond, to escape from the consequences of a forfeiture.

Plaintiff nonsuit.