Frisbie v. Fowler

Supreme Court of Connecticut June 24, 1819

Frisbie v. Fowler, 3 Conn. 87 (Conn. 1819)

Been, Brainard, Bristol, Chapman, Counsel, Gave, Hosmer, Parties, Peters, Same, Were

Opinion of the Court

Hosmer, Ch. J.

The statute for regulating gaols, (a) has *89authorised the court, at their discretion, on notifying the parties concerned, and on due enquiry, to order the close confinement of prisoners committed on execution. It is the undoubted object of the law, in prevention of fraud, to render the imprisonment of such debtors as are able, available to the collection of their debts. It was enacted, though not exclusively, for the benefit of creditors ; and it would be an absurdity to decide, that those who are interested in its provisions, may not move the court to enforce them.

To give effect to the law, no action is necessary. On motion to the court, with notice to the party interested, the judges are empowered to make such order as justice requires. A summary proceeding of this description, is all that was ever contemplated. This view of the subject contains a decisive answer to the objection, that the writ should have been abated for the non-payment of duty. As a writ, it never had any validity. In bringing the subject before the court, an unnecessary formality has been adopted ; but it is competent for the court to consider the application as amounting to a motion. The case is not distinguishable from a formal application, by petition, requesting the continuance of an action. As a writ, it would be invalid; but it would be trifling with the court, to insist, that by reason of the needless formality, it should be considered as a nullity. Whenever the law requires a writ, it demands a duty. In this case, no writ was necessary ; nor will the state be defrauded by the non-payment of a duty, when no duty was required.

Peters, Chapman and Brainard, Js. were of the same opinion. Bristol, J. gave no opinion, having been of counsel for one of the parties.

Judgment affirmed.

Tit. 81. c. l.s. 20. This section, which originally constituted a separate act, was passed in May 1788. Its provisions were as follows : “ That whenever any person shall hereafter be committed to, or held, or is already committed to, and held, in any gaol in this state, by virtue of an execution for debt, damage, fine or cost, the superior court, where the judgment on which such execution issued, is rendered by said court, and in every other case, the county court, of the county in which such prisoner is committed or held, may, at their discretion, on notifying the parties concerned, or the attorney of the party belonging out of this state, and on due enquiry and examination, give such order to the sheriff of the county in which such gaol is, from time to time, for the close confinement of such prisoners as they shall think proper; and whenever such courts shall respectively (pursuant to the provisions of this act) order any sheriff to confine any such prisoner within the walls of the prison, of which such sheriff is keeper, it shall be the duty of such sheriff to conform to and obey such order ; and in case such sheriff shall neglect or refuse to obey such order, such ' neglect or refusal shall be deemed a voluntary escape in such sheriff; and he shall thereupon be liable to an action for the debt, damage, fine or cost, for which such prisoner is committed or held, in the same manner as though such *89prisoner had escaped by the permission of such sheriff. Provided nevertheless, that this act shall not extend to any prisoner, committed, or held, by virtue oí any execution, issued on a judgment for a sum not exceeding seventeen dollars.”

Reference

Full Case Name: Frisbie against Fowler and wife
Status: Published