Slasson v. Brown , 37 Mass. 436 ( 1838 )

Dewey J.

delivered the opinion of the Court. This is an action of debt on a prison bond, the condition of which was. that William Brown would not go without the exterior limits of the prison until he should be lawfully discharged. It is admitted that he did go without the prison limits, but, as is claimed by the defendants, with legal right so to do, he having been discharged from his imprisonment in .due course of law. To sustain this defence, the defendants rely upon the certificate of two magistrates, being justices of the peace and of the quorum, who certify in the form prescribed by the Revised Statutes, that they have administered the poor debtor’s oath to Brown ; which certificate was delivered to the gaoler before Brown left the prison limits.

Several exceptions are taken to the validity of this certificate, all of which arise from certain alleged informalities in the proceedings preliminary to the administration of the oath by the justices. The first question to be settled relates to the effect to be given to the certificate of the magistrates. Is it conclusive as to the regularity of all the previous proceedings repaired to be taken by the debtor in reference to it, or may the creditor in a suit on the prison bond go behind the certificate and show an informality in the notice or other proceeding prior to the taking of the oath ?

This point was before the Court in the case of Putnam v. Longley, 11 Pick. 489. In that case the proper oath was administered and a certificate in due form was given to the gaoler, after which the debtor went at large beyond the prison limits. But the creditors were permitted to recover upon the prison bond, upon their showing that the notification to the creditors, who were three co-partners, all residing within the Commonwealth, had been served upon only one of them; thus, as it would seem, recognising the doctrine, that a creditor may go behind the certificate of the magistrates and show irregularity in the preliminary proceedings.

In the earlier case of Little v. Hasey, 12 Mass. R. 319, it had been held, that a certificate of the magistrates was no defence to a suit on the prison bond, where it appeared that they had administered the oath required by the act of 1787, c. 29, the debtor being imprisoned after the enactment of St. 1805, c. 100, which had varied the form of the oath. This case, as it seems to me, depended upon somewhat different principles from that of Putnam v. Longley, although cited as a precedent for it, and the rule authorizing the creditor to go behind the certificate of the magistrates made in conformity with the existing laws, is rather to be considered as established by the latter, than by the former of these cases.

The only case that has been supposed to militate against the doctrine of Putnam v. Longley, in any degree, is that of Haskell v. Haven, 3 Pick. 404, where it is assumed by the judge who delivered the opinion of the Court, that the certificate of the magistrates is conclusive as to the service of the citation upon the creditor ; but the question raised in that case was not as ts the service of the citation, but as to the legality of the citation itself, and upon this point the party was allowed to go behind the certificate, although in the results he failed to sustain his action, the citation being in the opinion of the Court conformable to law.

The ground of defence in a case like the present, is, that the magistrates had no jurisdiction of the case. This want of jurisdiction arises from the failure on the part of the debtor to comply with the requisitions of the statute.

Taking the law to be as held in the case of Putnam v. Longley, the question then arises, whether there are any fatal defects in the preliminary proceedings in the case now under consideration.

The one principally relied upon is the insufficiency of the citation issued to the creditor, of the time and place appointed for administering the oath. The Revised Statutes, c. 98, § 1 and 2, provide that upon the application of an imprisoned debtor, to any justice of the peace, he shall appoint a time and place for the examination of the debtor, and shall give notice thereof to the creditor, by a citation under his hand. The notice issued by the justice in the present case, was directed to Ebenezer B. Slasson as the supposed creditor, but the name of the creditor was Edward B. Slasson. The plaintiff denies the authority of the justices to administer the oath to the debtor, because there had been no citation directed to the proper person The names of the creditor in the execution and of the person described as such in the citation, are obviously very dissimilar, and if any error in the Christian name of the party would avoid the proceedings, that occurring in the present case must have that operation. It is an entire variance-the Christian name, and to hold that it was not a fatal defect would be to dispense with all rules requiring a correct description of the party who was to be cited. The notice, it is to be remarked, was not served on the creditor himself, but on his attorney, which much strengthens the objection. ' The service was upon Mr. Sumner as an attorney of Ebenezer B. Slasson, but the person upon whom the service was made was not the attorney of any one bearing that name, and was not therefore bound to take notice of any proceeding connected with the citation. There was therefore no such notice as the statute requires previous to the exercise of jurisdiction in the case by the two magistrates, and they had "no lawful authority to proceed to discharge the debtor upon his examination and taking the oath administered to him.

It is essential to the rights of parties, that they should have proper notice of all proceedings affecting their interests. This principle lies at the foundation of all our proceedings in courts of justice, and has always been strictly applied when questions have arisen as to the validity of acts of inferior tribunals. Chase v. Hathaway, 14 Mass. R. 222 ; Scott v. Dickinson, 14 Pick. 276.

The failure to give notice to the creditor, of the time appointed for taking the examination and administering the oath to the debtor, is a fatal defect, and renders the subsequent acts of the magistrates in the present case wholly ineffectual as a legal discharge of the debtor from the prison limits.

Another objection, founded upon the recital in the notice that the debtor was desirous of taking the oath allowed by “an act for the relief of poor persons who are committed by execution for debt,” referring to the act of 1787, c. 29, instead of the Revised Statutes, c. 98, which latter were alone in force at the time of issuing this citation, we are strongly inclined to think would also be considered as well sustained ; but the opinion already expressed upon the first objection to the citation, renders it unnecessary particularly to examine this, or the various other objections urged by the plaintiff to the validity of ~the discharge of the debtor from his imprisonment.

Judgment for the plaintiff.