POOR DEBTORS. BY HAROLD N. Eldridge. I. PROCEEDINGS BY POOR DEBTOR TO SECURE DIScharge froM IMPRISONMENT, 1. 1. Bond or Recognizance that Debtor Will Within a Certain Time Present Himself for Examination, 2. 2. Examination and Discharge of Poor Debtor, 6. a. Petition for Appointment of Justices Before Whom Application for Administration of Poor Debtors Oath may be Made, 6. b. Appointment of Justices to Administer Oath, 6. c. Application or Petition, 6. d. Proceedings Upon Application, 9. (1) Order that Notice of Application be Given to Creditor, 9. (2) Citation or Notice to Creditor, 9. (3) Certificate of Service of Notice on Creditor, 13. (5) Affidavit by Creditor that Debtor is Not Entitled to (6) Oath, 16. (7) Certificate of Administration of Oath, 18. II. PROCEEDINGS ON BOND OR RECOGNIZANCE OF POOR DEBTOR, 22. CROSS-REFERENCES. For Forms relating to Arrest on Mesne Process, see the title ARREST IN CIVIL ACTIONS, vol. 2, p. 117. For other Forms in Actions on Bonds and Undertakings, see the title BONDS AND UNDERTAKINGS (ACTIONS ON), vol. 3, p. 528. For Forms relating to Arrest Upon Execution in Civil Actions, see the title EXECUTIONS AGAINST PERSON, vol. 7, p. 953. For other Forms in Proceedings to Obtain Release of Imprisoned Debtors, see the title EXECUTIONS AGAINST PERSON, vol. 7, p. 953. See also the GENERAL INDEX to this work. I. PROCEEDINGS BY POOR DEBTOR TO SECURE DISCHARGE FROM 1. Bond or Recognizance that Debtor Will Within a Certain Time Present Himself for Examination.1 "Know all men by these presents, that we, John Mansfield of Portland as principal, and Nehemiah Curtis as surety, are holden and stand firmly bound and obliged unto Seth T. Scribner and William L. Blossom, both of Portland, late copartners in trade under the firm name of Scribner & Blossom, in the sum of one hundred and fifty-four dollars and fifty-four cents, to be paid unto the said Scribner & Blossom, his certain attorney, heirs, executors, administrators or assigns. To the payment of which sum we do hereby bind ourselves, our heirs, executors and administrators, jointly and severally, in the whole, and for the whole, firmly by these presents. Dated at Port Sealed with our seals. land, the first day of July, A. D. 1876. The condition of the above written obligation is such, that whereas the said John Mansfield hath been and now is arrested at Portland, in the said county of Cumberland, by virtue of an execution issued against him on a judgment obtained against him by the said Scribner & Blossom, by the consideration of our justice of our superior court, at a term of the said court which was begun and holden at Portland, within and for the county of Cumber land, on the first Tuesday of October, A. D. 1875, for the sum of fifty-nine dollars and sixty-three cents, damage, and costs of court, taxed at twelve dollars and sixty-seven cents, with thirty cents more for two writs of execution, and the officer's fees and charges for said arrest, taxed at one dollar and eighty-seven cents. Now if the said John Mansfield shall in six months from the time of executing this bond, cite the said Scribner & Blossom, the creditor, before two justices of the peace and of the quorum, and submit himself for examination agreeably to the one hundred and thirteenth chapter of the revised statutes, and take the oath prescribed in the thirtieth section of said chapter, or pay the debt, interest, cost and fees, arising in said execution, or deliver himself into the custody of the jailer, agreeably to the twenty-fourth section of the chapter above referred to, then this obligation to be void, otherwise to remain in full force. Signed, sealed and delivered in presence of S. D. Hall. his John Mansfield. (SEAL) mark Nehemiah Curtis. (SEAL) We, the subscribers, do approve of the sureties named in the foregoing bond. Scribner & Blossom, creditors, per E. S. Ridlon, their attorney." The condition of the bond in this case, instead of following the language of the statute by providing that the principal shall within six months from the time of his arrest (or imprisonment) cite, etc., provided that "he shall in six months from the time of executing this bond," etc. This was held not to render the bond insufficient. 64 In Com. v. Cutter, 98 Mass. 31, the recognizance was as follows: Commonwealth of Massachusetts. County of Suffolk, to wit: On this twenty-eighth day of January, in the year of our Lord eighteen hundred and sixty-seven, Isaat J. Cutter, of Boston, counsellor at law, is brought before me, Charles C. Nutter, a master in chancery for the county of Suffolk, at my office in the city of Boston, by B. F. Bayley, a deputy sheriff, of said county of Suffolk, this day arrested by him, under and by virtue of a writ of execution bearing date the nineteenth day of December, A. D. 1866, issued in due form of law upon a judgment which the Commonwealth of Massachusetts by the consideration of the justices, of the superior court, holden at Boston, within and for the county of Suffolk, on the first Tuesday of October, A. D. 1866, to wit, on the fifth day of December, A. D. 1866, recovered against the said Isaac Form No. 15299.1 Know all men by these presents, that we, John Doe of Portland, in the county of Cumberland, in the state of Maine, as principal, and Richard Roe of said Portland, as surety, are holden and stand firmly bound and obliged unto Nathan Hale of said Portland, in the sum of eight hundred dollars to be paid unto the said Nathan Hale, his certain attorney, heirs, executors, administrators or assigns. To the payment of which we do hereby bind ourselves, our heirs, executors and administrators jointly and severally, in the whole and for the whole, firmly by these presents. Sealed with our seals and dated at said Portland, the first day of July, A. D 1899. The condition of the above written obligation is such that, whereas the said John Doe was on the thirtieth day of June, 1899, arrested at Portland, in said county of Cumberland, and now is under arrest at said Portland, by virtue of an execution issued against him on a judgment obtained against him by the said Nathan Hale, by the consideration of our justice of our Superior Court, at a term of the said court which was begun and holden at Portland, within and for the county of Cumberland, on the first Tuesday of October, A. D. 1898, for the sum of two hundred and fifty-nine dollars and sixty-three cents damages, and costs of suit taxed at twelve dollars and sixty-seven cents, with thirty cents more for two writs of execution, the officers' J. Cutter the sum of three hundred and twenty dollars and eighty-eight cents damage, and sixty-five dollars and fourteen cents costs of suit; annexed to which writ was an affidavit subscribed and sworn to by James C. Davis, in behalf of the said judgment creditor, with a certificate thereto, signed by James B. Thayer, master in chancery, a true copy of which affidavit and certificate by me attested is hereunto annexed; and the said judgment debtor, being interrogated by me, says that he desires to take the oath for the relief of poor debtors, but does not desire any time fixed for his examination, and requests that his recognizance, with surety, may be accepted, that within thirty days from the day of his arrest he will deliver himself up for examination before some magistrate authorized to act, etc., and offers for surety E. S. Cutter, having his usual place of business in Boston aforesaid, counsellor at law, and the said E. S. Cutter, being personally present, is examined by me on oath, and, being deemed by me sufficient is accepted as surety, and thereupon they, the said judgment debtor, Isaac J. Cutter as principal, and the said E. S. Cutter as surety, acknowl edge themselves to be jointly and severally indebted to the aforementioned judgment creditor, in the sum of eight hundred dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of the said judgment creditor, if default be made in the performance of the condition hereunder written, to wit: That the said judgment debtor, within thirty days from the time of his arrest, as above mentioned, will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time and place fixed for his examination, and from time to time until the same is concluded, and not depart, without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon; and if the said judgment debtor shall, in all respects, observe, perform, and keep the said condition, then this recognizance to be void, otherwise to be and abide in full force. fees and charges for said arrest charged at one dollar and eighty-seven cents, Now if the said John Doe shall within six months from the time of the arrest and imprisonment by the said execution 1 as aforesaid, cite the said Nathan Hale, the creditor, before two justices of the peace and of the quorum, and submit himself for examination agreeably to the one hundred and thirteenth chapter of the Revised Statutes of the state of Maine, and take the oath prescribed in the thirteenth section of said chapter, or pay the debt, interest, costs and fees arising from said execution, or deliver himself into the custody of the jailer of the county jail in said county of Cumberland, agreeably to the twenty-fourth section of the chapter aforesaid, then this obligation to be void, otherwise to remain in full force. Signed, sealed and delivered in the presence of William West. S John Doe. I, the subscriber, do approve of the surety named in the foregoing bond. Form No. 15300.3 Commonwealth of Massachusetts. Suffolk, ss. Nathan Hale.2 The Municipal Court of the Charlestown District, in the City of Boston. For Civil Business. On this fourth day of May, in the year of our Lord eighteen hundred and ninety-six, is brought before the said court within the county of Suffolk for civil business, by Richard White, sheriff of said county of Suffolk, Richard Roe, this day arrested by him, under and by virtue of a writ of execution bearing date the sixth day of February, A. D. 1896, issued in due form of law, upon a judgment which John Doe, by the consideration of the justices of the Municipal Court, 1. Time of Performance. A bond tion that the firm name of the creditors given to release an execution debtor was Joseph H. Poor & Brother, and should require performance within six that the approval of the bond was not months from the time of the arrest and by that name, but by the name of Poor imprisonment. Cushman v. Waite, 21 & Brother, the court said, "if either of Me. 540. But where the bond recites the creditors had signed the approval the date of the arrest and bears date on by the name of Poor & Brother, instead the same day, the debtor and his sure- of the full firm name, there can be no ties are bound by the date of the bond doubt but that it would bind them. and recital of the date of arrest. Cush- The attorney, having full power to man v. Waite, 21 Me. 540. bind the creditors, might do so by using the name of Poor & Brother for the firm name. But if we discard the name of Poor & Brother as not representing the creditors, though so intended, still the approval is signed by the attorney, and that is a good approval." Poor v. Knight, 66 Me. 482. A 2. Approval of Bond- Generally. bond not approved in the manner provided by statute is not a statutory 'bond. Randall v. Bowden, 48 Me. 37. Form of Approval. The above bond is approved by us. Poor & Brother, by T. T. Snow, Attorney." Mr. Snow being the attorney of record in the suit, this was held a sufficient approval. The attorney had authority to approve the bond by signing his own name as attorney or by using the names of the creditors. To the objec 3. Massachusetts. Pub. Stat. (1882), c. 162, § 28, as amended Stat. (1888), C. 419, § 6. See also list of statutes cited supra, note I, p. 1; and, generally, supra, note I, p. 2. |