Bliss v. Day

Supreme Judicial Court of Maine

Bliss v. Day

68 Me. 201, 1878 Me. LEXIS 65

DecidedMay 8, 1878

StatusPublished

This text of 68 Me. 201 (Bliss v. Day) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bliss v. Day, 68 Me. 201, 1878 Me. LEXIS 65 (Me. 1878).

Pincite

Opinion

Walton, J.

The only ground on which it is claimed that the action can be maintained is that the service of the citation to the creditor, of the debtor’s intention to disclose, was not legal.

I. One objection is that the constable who served the citation had not given the bond required by law for the faithful performance of the duties of his office. The obj ection is not sustainable. The constable was an officer de facto; and, so far as third persons are concerned, the acts of an officer de facto are as valid as the acts of an officer de jure. Upon this ground, the levy of an execution by a coroner who had not given the bond required by law was held valid. Nason v. Dillingham, 15 Mass. 170.

II. Another objection is that it is not competent for a constable to serve a citation, when the amount due the creditor exceeds a hundred dollars. This objection is based on the statute which declares that a constable may serve any writ or precept in a personal action, when the damage claimed does not exceed a hundred [202]*202dollars. R. S., e. 80, § 43. This statute, it will be noticed, is applicable only to writs and precepts in personal actions, and to writs and precepts in which damages are claimed. A citation is neither. It is not a writ or precept in a personal action ; nor is it a writ or precept in which damages are claimed. It is simply a notice to the creditor of what the debtor intends to do. Consequently, the statute does not apply, and the objection is not sustainable.

III. Another objection is that the constable’s return is defective in' form. The plaintiff, whose duty it was to furnish copies of all papers properly in the case, has not furnished us with a copy of this return. Consequently, this objection fails for want of proof; and the certificate of the justices, in which it is stated that the debtor had caused the creditor to be notified according to law, must prevail. Dunham v. Felt, 65 Maine, 218.

Judgment for defendants.

Appleton, C. J., Dickerson, Barrows, Daneorth and Peters, JJ., concurred.

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Walton, J.

The only ground on which it is claimed that the action can be maintained is that the service of the citation to the creditor, of the debtor’s intention to disclose, was not legal.

I. One objection is that the constable who served the citation had not given the bond required by law for the faithful performance of the duties of his office. The obj ection is not sustainable. The constable was an officer de facto; and, so far as third persons are concerned, the acts of an officer de facto are as valid as the acts of an officer de jure. Upon this ground, the levy of an execution by a coroner who had not given the bond required by law was held valid. Nason v. Dillingham, 15 Mass. 170.

II. Another objection is that it is not competent for a constable to serve a citation, when the amount due the creditor exceeds a hundred dollars. This objection is based on the statute which declares that a constable may serve any writ or precept in a personal action, when the damage claimed does not exceed a hundred [202]*202dollars. R. S., e. 80, § 43. This statute, it will be noticed, is applicable only to writs and precepts in personal actions, and to writs and precepts in which damages are claimed. A citation is neither. It is not a writ or precept in a personal action ; nor is it a writ or precept in which damages are claimed. It is simply a notice to the creditor of what the debtor intends to do. Consequently, the statute does not apply, and the objection is not sustainable.

III. Another objection is that the constable’s return is defective in' form. The plaintiff, whose duty it was to furnish copies of all papers properly in the case, has not furnished us with a copy of this return. Consequently, this objection fails for want of proof; and the certificate of the justices, in which it is stated that the debtor had caused the creditor to be notified according to law, must prevail. Dunham v. Felt, 65 Maine, 218.

Judgment for defendants.

Appleton, C. J., Dickerson, Barrows, Daneorth and Peters, JJ., concurred.

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Bluebook (online)

68 Me. 201, 1878 Me. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bliss-v-day-me-1878.