Chase v. Collins

68 Me. 375, 1878 Me. LEXIS 113

• Court: Supreme Judicial Court of Maine
• Decided: July 23, 1878
• Status: Published

Opinion

Appleton, O. J.

This is an action of debt on a poor debtor’s bond. Among the conditions there was one that the debtor would “ take the oath prescribed in the 28th section of chapter 113 of the revised statutes.” But no oath is prescribed by § 28. The oath required to be taken when a bond is given under the provisions of § 24 is to be found in § 30.

The bond given is not therefore in conformity with the require.ments of § 24, and is not a statute bond. Fales v. Dow, 24 Maine, 211. Hovey v. Hamilton, 24 Maine, 451. Woodman v. Valentine, 24 Maine, 551.

The oath referred to was the one required by R. S. 1857, c. 113, § 28. The plaintiff offered to show that the words “ 28th ” were unintentionally left in the bond, and that the officer intended to take the bond required by R. S. 1871, c. 113, § 24, but the presiding justice excluded the evidence. The exclusion was right.

The mistake or accident is not one which is cured by R. S., c. 113, § 48. The penalty of the bond does not vary from the sum, required by law.

The plaintiffs have judgment for the damages actually sustained, as assessed by the presiding justice at nisi prius, and with that they must be content.

Exceptions overruled.

Walton, Bakeows, Danfoeth, Petees and Libbey, JJ., concurred.