Rogers v. Stevens , 45 N.H. 478 ( 1864 )

Perley, C. J.

No person can be arrested in any suit on a contract made after March 1, 1841, unless the affidavit prescribed by the statute is endorsed on the writ; and in such case "the defendant when arrested may require the officer making the arrest to carry him before two justices, one of whom shall be of the quorum; and such justices, upon consideration of his affidavit and such evidence as may be laid before them, if they believe he does not so conceal his property and has no intention to leave the State, may make an order for his discharge upon the writ or execution, and he shall be released. Was the decision of the two justices, that the petitioner should be subjected to a personal examination on motion of the creditors, right?

The hearing on the application of the debtor for his discharge from arrest is to be on his affidavit and such evidence as may be laid before the justices. The debtor must present his affidavit as part of the evidence; but the provision that he shall offer his own affidavit was not, we think, intended to shut out any other evidence proper to be received on such an inquiry. The statute evidently contemplates that there shall be opportunity for a full investigation of the question, whether the debtor is entitled to be discharged from the arrest. A general denial of the facts stated in the affidavit endorsed on the writ would be of little use to the creditor, who proposed to enter upon a serious examination of the case; and it could not have been the intention of the statute to deny the creditor the right of putting particular questions to the debtor. Besides, by the statute of 1857, "no person shall be excused or excluded as a witness in any civil suit or proceeding at law or in equity by reason of .interest in the event of the suit as a party or otherwise.” This was not a. criminal, but a civil, proceeding at law, plainly within the aims, and .the scope and intent, of the statute. Our opinion, therefore, is that the ruling of the justices on this point was correct.

The petitioner was carried, on his request, by the officer who arrested him, when he was arrested, before two justices, who heard his application and correctly decided on the question of admitting the creditors to examine him under oath, and, so far as appears, on all other questions which were raised before them. The debtor, before any decision on the question of his discharge, chose to withdraw his application, and was legally committed to jail on the writs. He certainly stands no better on this state of facts than he would if he had made no application to the officer who arrested him. He afterwards applied, not to the officer who arrested him, nor when he was arrested, but to the sheriff after his commitment to jail,to be carried again before two justices. But his right to be carried before two justices is on application to the officer, who arrests him, and when he is arrested. His application must be to the officer who arrests him, while he is held in arrest by that officer, and before he is committed to jail. After commitment neither the sheriff nor the jailer has any authority under the statute to carry him before two justices. He may be discharged from jail by giving baií; but the provision of the statute., which we are considering, evidently relates only to the time while the debtor, before commitment, remains in the custody of the officer who arrested him.

Our conclusion is that the petitioner was legally imprisoned and was not entitled to his discharge, nor to be carried again by the sheriff before two justices of the peace.