Keay v. Palmer

The opinion of the court was delivered by

We shall in the first place, examine the question, whether at the time R. Palmer took the poor debtor’s oath, a poor debtor could be legally discharged from imprisonment upon taking that oath, without having made a previous application for the purpose in writing, to the magistrates before whom the oath was taken ?

The decision of this question must depend upon the true intent and meaning of the statutes on this, subject which were in force at the time. There were. ⅛ ⅞¾ *50statutes only two clauses which have any bearing upon tllis/pomt. The statute of February 15, 1791, enacts, u that when any person committed on execution recovered ⅛⅜ proper action of debt, covenant, contract, or promise, shall not have at the time, &c. estate to the value of ten pounds, such person may, at the expiration of tliirty days from the time of commitment, apply to any two justices of the superior court, &e. and pray to be admitted to take the oath, &e.”

The statute of June 13, 1796, enacts, “ that when any person now committed, or who hereafter may be committed to prison upon any writ of execution issued upon a judgment rendered upon any plea of the case, trespass, ejectment, trover, or trespass on the case, shall have re-' mained a prisoner for and during the term of thirty days, the justices, &c. upon petition of the prisoner and notice given to the creditor, &c. may, &c. administer the same oath, &c.” We have no doubt, that under these clauses in the statutes, the most regular and safe mode of proceeding would have been to require an application in writing. But we see nothing in the language used by the legislature which makes such an application necessary. For even the word petition, by no means implies an application in writing. Nor do we see any thing in the nature of the transaction which necessarily requires a written application. The authority of the magistrates to make an order of notice, to hear the parties and to administer the oath, may be conceded to rest upon the application of the prisoner. It may be admitted, that if he makes no application, they have no power to intermeddle. Yet still there is not in the nature of the thing any necessity thahfhe application should be in writing. An application without writing may still be a sufficient foundation for their proceedings. It is by no means essential, even to the safety and security of the jailer who discharges a poor debtorvttpoii taking the oath, that there should be a writ-tin appllhation, because when it was shown that the *51debtor had taken the oath, it would be pi’esumed that he had made an application to be admitted to take it. And sureties in bonds given for the liberty of the prison-yard, would stand on the same ground.

It is said to have been a very common practice in this county formerly, to administer to prisoners the poor debtor’s oath and discharge them without any written application on their part to the magistrates for the purpose. And wc have no doubt that instances of a simitaf practice have not unfrequently occurred in other counties, We should therefore come 1o the decision, that such discharges were illegal, with great reluctance, because it would probably involve many innocent prison-keepers and sureties in irretrievable ruin, and be productive of great inconvenience and distress. And we are rejoiced to find, after a most careful and attentive examination of the subject, that there is nothing in the requisitions of the statutes, or in the nature of the transaction which has made a written application necessary.

The next question to be considered is, whether the discharge oí R. Palmer in this case must be adjudged illegal because the magistrates were not together, when the application was made to them ?

It has been insisted, that they ought to be together when they receive the application in order to determine upon a time and place for the hearing of the parties, and also in order to issue a notice to the creditor, and as these are acts of a judicial nature, requiring deliberation, a separate application to the magistrates severally must be adjudged void.

Whether the magistrates must be together, when they receive the application, is one question ; but it is another, and a very different question, whether they must be together when the time for hearing the parties is appoinjA ed, and the notice to the creditor signed. The application is the act of the debtor, and whether it be inatlf, to them separately at separate times, or to both at the; *52same time, is most clearly immaterial, because, although the application might be made to them severally, they might afterwards meet and agree upon a time to hear the parties.

The questions which the plaintiff’s counsel seems disposed now to raise are, whether the day of hearing ought not to have been appointed, and the order of notice made and signed by the magistrates when together. But these questions do not arise upon the case stated. The allegations that a.day was appointed, and that notice was duly given are not traversed. But as these questions have been argued by counsel, and have been considered by the court, we shall now state what we conceive to be the law on the subject. We do this, because if counsel have, through mistake or misapprehension, failed to raise the questions they intended to raise, we should be disposed,.upon terms, to give them an opportunity to raise them, if it should appear that they might be material in the decision of the cause, and in this case these questions may as well be decided now as upon a motion to amend.

It is very clear, that when an act, in its nature judicial, demanding the exercise of judgment and discretion is required to be done by two, they must be together when they do it. But the appointment of a time for hearing the application of a poof debtor is not a judicial act. It is no more a judicial act than the appointment of a time when a writ shall be made returnable before a justice of the peace, which is usually done by the attorney who makes the writ. On this point the case of Haskell v. Haven, 3 Pick. 404, is a direct authority.

Nor is there any pretence that the making of the order of notice was a judicial act. It was an act as perfectly ministerial as the issuing of a subpoena to summon witríéss, or of a notice to a party of the time and place When and where a deposition is to be taken. .-

.;;...We.-..hAy.e therefore, no hesitation in holding, that in *53this case the application was duly made to the magistrates and the notice duly issued.

It is said, further, on behalf of the plaintiff, that it appears by the pleadings that the magistrates certified to the jailer, that R. Palmer took the oath prescribed by an act for the ease and relief of persons imprisoned for debt, which was not the proper oath. But it is a decisive answer to this, that in another part of the pleadings it is directly averred that R. Palmer took the oath prescribed by the statute of June 16, 1807, and this averment is not in any way denied by the plaintiff.

The certificate is in the form prescribed by the statute of February 15, 1791. The form of the oath has been changed by the statute of 1807, which seems to demand a change in the form of the certificate, but there is nothing in any statute which expressly requires such a change. And we are of opinion that whether a proper certificate was given to the jailer oruiot, is no concern of this plaintiff, and that this objection can not avail him any thing in any shape.

And on the whole, we are of opinion, that the verdict must be set aside, and

A new trial granted.