Ware v. Ash

The opinion of the Court was by Weston C. J. The bond in suit in this case, was given in virtue of the statute of 1835, c. 195, 8. It does not therefore [387] fall within the principle of the case of Knight v. Norton & al. 15 Maine R. 337, which was based upon the subsequent statute of 1836, c. 245. The statute of 1835, <§> 8, pointed out no mode, by which the creditor was to be cited. It was one of the conditions of the bond, that the debtor was to cite the creditor. He did this, by availing himself of the sanction and authority of a Justice of the Peace. As the time and place, when and where the creditor was to appear, and the object of the citation, is stated with precision, we are of opinion, that in the absence of any prescribed statutory mode, it ought to be held sufficient; more especially as the Justices, who had jurisdiction of the subject matter, so regarded it. And this alone is decisive of the sufficiency of the notice. Agry v. Betts, 3 Fairf. 415. In the citation, Cornville, the residence of the creditor, is erroneously stated to be in the county of Penobscot, instead of the county of Somerset; but it was served upon the creditor in person, by a deputy sheriff of Somerset. The Justices find and certify, that he was notified according to law. He was fully apprised of the time, place and purpose, set forth in the citation. It does not appear to us, that the error therein in regard to the county, can or ought to have the effect to vitiate the proceedings. From the certificate of the Justices, it appears that the poor debtors’ oath was duly administered to the principal defendant. Nonsuit confirmed.