Hawley v. White

The statute of February 15,1791, provided that any person committed to prison on mesne process in any civil action, or on execution founded on a proper action of debt, covenant, contract or promise, should be permitted to have a chamber and lodging in any of the houses or apartments belonging to such prison, and liberty of the yard thereto belonging; but not to pass without the limits of the prison yard, &c., such prisoner giving bond to the creditor, &c. The condition of the bond was, that the debtor should continue a true prisoner within the limits of the prison, &c.

It then provided that if the sureties were not approved by the creditor, &c., any two justices of the superior court, court of common pleas, or a justice of "the superior court, with a justice of the common pleas, or either of said justices with a justice of the peace, who are disinterested, might approve of the bond.

The second section enacted that the debtor might apply to any two justices of the superior court of judicature, or any two justices of the court of common pleas in the county where such person is committed, or one of the justices of said superior court and one of the justices of said court of common pleas, or to either of said courts, while sitting in the same town where such prisoner is committed, and pray to take the oath, &c. If the oatli was administered, a certificate was to be given, directed to the keeper of the jail, stating that the prisoner had taken the oath, and ought, in their opinion, to be discharged. N. H. Laws, pages 153-155, (Ed. 1815).

By the act of June 13, 1796, the justices of the superior court of judicature or court of common pleas, in such *70county respectively, were authorized to administer the oath to prisoners committed on executions recovered in actions of traspass,- &c. N. H. Laws 155.

It may well be supposed that the approval of the bond was to be made in the county where the debtor was imprisoned; but if this were not clear, from the provisions of the statutes before cited, there can be no doubt that the oath was to be administered in that county, for. the debtor could not pass beyond the jail limits without committing an escape.

And, moreover, the language of the statute is precise upon this point: “ Any two justices of the court of common pleas, in the county where any such person is committed.”

The act of June 23, 1814, provided that any two justices of the peace of the quorum within and for the county in which they reside, shall hereby have power, and be fully authorized, in the same way and manner as justices of' the supreme judicial court, or justices of the circuit court of common pleas with a justice of the quorum now', are to administer the oath or affirmation to any person “imprisoned by virtue of any writ of execution,” “ at any of the gaols within this State.” N. H. Law's 159 (Ed. 1815). The second section authorized such justices, when the prisoner was so committed, to approve the bond. N. H. Laws 159 (Ed. 1815). The second section authorized such justices, when the prisoner was so committed, to approve the bond. This act repealed an act of June 24, 1813. ■

As these acts only extended the authority to other magistrates, who ¡were to perform the action the same way and manner, the oath must still have been administered within the county where the debtor was committed, and by justices of the peace there commissioned.

The act of December 29, 1828, provided for the appointment of commissioners of jail delivery in each county, and that any two of said commissioners should have, “within their respective counties,” all the power *71and authority vested in any two justices of the superior court, or court of common pleas, to administer the oath. N. H. Laws 480 (Ed. 1830).

And the act of January 8, 1829, authorized the debtor to apply “to any two justices of the superior court of judicature, or of the court of common pleas, or to any two commissioners of the jail delivery, in the county in which they reside,” &c. N. H. Laws 477 (Ed. 1880).

But the oath was still to be administered in the county where the debtor was committed, and by the justices in that county, or the commissioners, for the debtor was still in jail, or within the limits. The commissioners were not authorized to go beyond their county, and the debtor could not go to them in another county. A certificate was to be returned to the jailer, &c.

It is very apparent that the jurisdiction was to be executed in the county where the debtor was committed.

The act of July 2, 1831, chap. 30, extended the limits of the jail-yard to the limits of the counties, and then provided that any person arrested upon execution might give bond in the same way and manner as if actually committed to jail on the execution, and be discharged from the arrest. Under this act, however, ho was a.prisoner, within the enlarged limits, and the oath must have been administered to him in the county in which he was imprisoned, because he could not go beyond the limits of that county.

Then came the act of January 3, 1833, chap. 107, which enacted, that any person arrested on execution might give a bond, in the form of that in the present case, by which the debtor was confined to no limits, but was required to take the oath in the manner prescribed by the laws of the State, within one year, or surrender himself; and the third section provided, that “any two justices of the peace and quorum shall have, within their respective counties, all the powers and authority which now or hereafter may be vested in any two justices of the supe*72rior court, or court of common pleas, or in any two commissioners of jail delivery, to administer the oath or affirmation prescribed by law,” &e.

The fourth section farther provides, that “the application to take the oath or affirmation by law prescribed for the relief of poor debtors, and all subsequent proceedings thereon,” “ shall be the same as now provided in the case of a person committed on execution,” so far as the same are not altered by this act.

This act provided for a certificate that the oath had been administered, without specifying any address to the goaler.

It is apparent that, under the late statute, there was a physical possibility for the debtor to apply in another county from that in which he had been arrested, but there is nothing to show that the legislature contemplated any such change of jurisdiction, and the third and fourth sections of the statute show very conclusively that they did not. There is no clause which speaks of any transfer or enlargement of jurisdiction, and by the fourth section the proceedings are to be the same, so far as •they are not altered. The provisions of this act were incorporated into chapter 200 of the Revised Statutes.

We are of opinion, therefore, that the application must be made, the place of hearing appointed, and the oath administered within the county where the arrest was made. If the proceedings might be in any other county, the creditor might be practically deprived of his right to object, or put to great inconvenience in exercising it.

This question was considered in Green v. Cheswell, Strafford county, December term, 1841, and upon a similar case there was

Judgment for the plaintiff.