Haskell v. Haven ( 1826 )

Parker C. J.

delivered the opinion of the Court. The issue tried by the jury was, whether notice had been given to the pla ntiff of the time and olace appointed to administer the poor debtors’ oath; and the certificate of the justices who administered the oath, together with the notification purporting to be signed and made by Joseph H. Pierce, a justice of the peace duly authorized thereto, were tendered and received as evidence of the fact. By the certificate of the two justices who administered the oath it appears, that they have examined ■the return of the notification made by the officer who served it, and found it conformable to law. The certificate must be conclusive evidence of that fact, for it is made by the statute the special duty of the magistrates to examine the return. The case therefore rests altogether upon the position taken by the plaintiff, that the certificate of the magistrates was void, because they had no jurisdiction of the case, and no right to act, for want of legal proceedings made necessary by the statute before they are called upon to exercise any authority. The notification is unobjectionable in its form ; it was signed and sealed by Pierce, who at the time, held a commission of justice of the peace, which was in force. The evidence which was received to contradict this official act was, that Pierce, at the time it bears date, and for a long time before, and until after the day purporting to be assigned for administering the oath, was not within the commonwealth, but was at Washington.

The case presented for the determination of the Court, therefore, is, whether his official certificate of the application to him by the gaoler in behalf of the confined debtor, and of the assignment of a time and place for the hearing, and notice thereof to the creditor, which was served upon the creditor in the manner and within the time prescribed by law, can be rendered null and void by parol evidence that the justice was absent at the time, so that he could not, in point of fact, have personally made out or filled up the notification which bears his signature and seal. As the authority and jurisdiction of a justice of the peace are limited by the county within which ne dwells, and for which he is commissioned, unless he be a justice of the peace throughout the commonwealth, it seems to be immaterial to the question, whether the magistrate was at the distance of five hundred miles or of one mile, provided he were without the limits of his county. If he were in the town of Roxbury, or at Lechmere’s Point, when the certificate or notification issued, he was beyond his jurisdiction as much, to all legal purposes, as if he were at Washington ; and indeed the argument for the plaintiff proceeds upon this ground ; for it is contended that there must be a personal application to the justice, and that the act to be done is a judicial act, requiring his personal presence, and which cannot be delegated. If it ought to be considered in this light, it would certainly follow, that the notification which was acted upon in this case was void. But it is very clear that, in this respect, the act required of him by law is merely ministerial. He cannot refuse to issue a notification, when application is made to him by the gaoler ; he is to act forthwith, without any hearing of parties upon the subject; he is only to appoint a time and place for a hearing before another tribunal. There is nothing of a judicial character in all this, any more than in issuing a subpana for witnesses, or a writ or other process returnable before himself. In St. 1797, c. 35, § 2, [see Revised Stat. c. 94, § 15,] it is provided, that when either party in a cause shall apply to a justice of the peace to take a deposition, he shall give notice to the adverse party, &c., and the form of this notice is prescribed. It would be an unusual strictness to inquire whether an application was in fact made to the justice, or whether the blanks in the form of the notice prescribed, were filled up by him, or by some clerk, or even by the party himself in the absence of the justice. The case cannot be distinguished in principle from all other cases of initiatory process, such as original writs, summonses, subpanas, which having the proper signature, and seal, if one be required, have been considered, according to immemorial usage, as the legal acts of courts, clerks, justices, &c., although in fact issued in blank, and in almost all cases filled out by the party who wishes to use them, his agent or attorney. Nor is there any injury resulting from this practice, for the whole object of the. process is to compel an appearance, or to give notice of something to be done at a future day ; and if that notice is given within the prescribed time, and in the forms required, the party to be affected has no ground of complaint. In such a process as the one which has raised this question, it might be particularly inconvenient to admit proof of the tem porary absence of the justice upon whose notification two justices are empowered to inquire into the right of a poor debtor to be discharged upon taking the oath; and the custom of leaving blanks, to be filled up by the gaoler or other person, is in no respect productive of mischief. The time allowed the creditor after service of the notification is fixed by law ; the manner in which it shall be served is also prescribed. If an inconvenient hour or place should be assigned, the justices of the quorum, who are to act upon the notification, are to examine the return, and it is in their discretion to refuse to act, if they shall find any attempt has been made to put them or the creditor to inconvenience. It is before them that the creditor is to have his hearing, and there be may object to the notice, as well as to the merits of the application by the debtor. If he refuses to appear, or appearing, does not object, he ought not to be allowed, after such an acquiescence, to complain of the proceedings, and resort to the sureties for the whole penalty of the bond, on the ground that an escape has been committed.

The authorities cited show, that where there is no jurisdic tion, the proceedings may be avoided by plea or evidence.¹

Judgment according to the verdict.

1 See Hall v. Young, ante, 2, note; 82 Stark. Evid. (5th Amer. ed.) 705.