Bugnon v. Howes

After a continuance, the opinion of the Court was prepared by Weston C. J. The case of Means et al. v. Osgood, 7 Greenl. 146, is exactly in point, as an authority for the demand-ants. The necessity of notice to the execution debtor, and that it should appear to have been given by the officer’s return, was not there controverted. That both were implied in the return then under consideration, was a view of the case not presented to the court in argument, nor did it suggest itself to them, in the final determination of the cause. It seemed to be conceded that the return was fatally defective ; and the attention of the court was principally drawn to the propriety of allowing the officer to amend it, by inserting the fact of notice to tire debtor, upon the motion of the demandants’ counsel; and the greater part of the opinion of the court, delivered by Parris J., is taken up in discussing and settling the extent and limitation of such amendments. Upon this last point it has been regarded as a leading case, while the facts upon which it was based, have not until this time, since that decision, been presented to the court, nor did they occur to them, in the discussions which have arisen in other cases on the question of notice to the debtor by implication. Thus in the case of Sturdivant v. Sweetser et al. decided last year in Cumberland, 3 Fairfield, 520, it was held, that such notice was implied from the return of the officer, that the debtor had refused to appoint an appraiser. And in Stinson v. Gurney, which was pending in this county not reported, the same deduction was made from the return of the officer, that the debtor had neglected to appoint one. In neither of these cases was that of Means v. Osgood cited; and if consistency has not been observed, it has been because these cases have never been before compared; but [158] principally because the idea of notice by implication did not present itself to counsel or to the court in that case. Upon this point, the statute of Maine is not precisely like that of Massachusetts. In the former notice to the debtor is expressly required. In the latter it is also required, but not in express terms. We say required, because the highest court in that state have so adjudged. Whitman v. Tyler et als. 8 Mass. 284; Blanchard v. Brooks et al. 12 Pick. 47. What the statute of Maine then is, in direct terms, that of Massachusetts, is by implication and judicial construction. In the last case the court say, that it must substantially appear by the return that the debtor had notice; “ and if it does not so appear, when the return shows that the officer chose two appraisers, the levy will be void.” They then remark, that as the statute had prescribed no mode of notice, in regard to which our statute is equally silent, it need not appear by the return how the notice was given ; and as the officer had there returned, as here, that the debtor had neglected to appoint an appraiser, they deduced therefrom, that he must have had notice of the time, place and occasion. They add, “ the return therefore, by necessary implication, alleges that he had notice ; and if in point of fact he had not, it would be a false return.” This is direct authority for the deduction of notice by implication, where the officer returns that the debtor neglected to appoint. It would undoubtedly be much better, that the fact of notice should be stated directly and affirmatively by the officer. Such a form would call his attention to the duty, which the statute prescribes ; and it is one certainly most to be approved. If we sustain and tolerate the return in question, it will be only, ut res magis valeat, quam per eat. It pursues a form, which- has been, we understand, extensively used, and many titles in this State depend upon it. It is always with reluctance, that a court finds itself constrained to defeat proceedings upon formal objections, where substantial justice may be better promoted by upholding them. By adopting the views of the Supreme Court of Massachusetts in regard to notice by implication, the rights both of creditor and debtor will be preserved. Of the creditor, by giving effect [159] to his levy; of tbe debtor, by bolding tbe officer liable for a false return, if tbe debtor lived in tbe same county, and was not notified as tbe statute requires. Nor will this bo a hardship upon the officer; for he violates his duty, if he does not give such notice. TJpou the whole, rve hold the levy in question valid : and if we overrule part of what was decided in the case of Means v. Osgood, we do it upon a distinction not there raised, and follow, to uphold proceedings, a very respectable authority in a sister State, in relation to a statute, which by their construction is substantially like our own. Nonsuit confirmed.