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74 Me. 103

Driscoll v. Stanford

Supreme Judicial Court of Maine

Decided August 2, 1882

Supreme Judicial Court of Maine · decided 1882-08-02

On EXCEPTIONS. Debt on poor debtor’s bond. The writ was dated December 2, 1879 ; the plea was general issue, with brief statement setting up performance of one of the conditions of the bond. The facts sufficiently appear in the opinion. The citation was fatally defective and the justices, therefore, never acquired jurisdiction. Poor v. Knight, 66 Maine, 482 ; Knight v. Norton, 15 Maine, 337; Neil v. Ford, 21 Maine, 440; Slasson v. Brown, 20 Pick. 436.

Decided 1882-08-02

Appleton, C. J.

¶1This is an action of debt on a poor debtor’s bond. The defence relied upon, is a disclosure and discharge by the justices, before whom the disclosure was had.

¶2The objection taken, is that the citation when served on the creditor, erroneously stated the year of the rendition of the judgment on which the execution was issued, by virtue of which, the defendant was arrested and gave the bond in suit.

¶3The plaintiff was duly notified of the time and place of hearing the defendant’s disclosure. He neglected to appear.v Not *104appearing, the debtor chose one justice and the other was chosen by the officer by whom the citation had been served.

¶4The defendant then moved that the citation Be amended by a change of the year in which judgment had been rendered, from 1879 to 1878. In all other respects the judgment was accurately described. The plaintiff had recovered no other judgment against the defendant and could hardly fail to perceive the mistake in the date of the judgment to which the citation referred.

¶5The justices allowed the amendment. This, they could properly do, within the provisions of the statute of 1878, c. 59, § 2, which enacts that, "no citation shall be deemed incorrect for want of form only, or for circumstantial errors or mistakes, when the person and case can be rightly understood. Such errors and defects may be amended on motion of either party.”

¶6Had the certificate of discharge followed the judgment as described in the citation, it would have constituted no bar to this suit, as was decided in Poor v. Knight, 66 Maine, 482, and cases there cited. It was to pi-event such a result, by allowing- the citation to be amended, that the act of 1878 was passed. The amendment permitted by the justices was in strict accordance with the uniform current of authorities on the subject. Ripley v. Hebron, 60 Maine, 379; Prescott v. Prescott, 65 Maine, 478; Cooper v. Bailey, 52 Maine, 230.

¶7Exceptions overruled.

Barrows, DaNeorth, VirgiN, Peters and Symonds, JJ„., concurred.
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