Childs v. Morse , 2 Tyl. 221 ( 1802 )

Curia.

The citation appears to have been incorrectly drafted, although the object of the statute has been obtained by the service of it. But the Court do not incline to hear further upon exceptions to the mesne process of what is commonly called the Court of Gaol Delivery. They wish to hear a question of greater magnitude argued, which may decide the sufficiency or insufficiency of the bar, over any defects in the primary process.

It appears by the pica, that the defendant Morse, under the provisions of the statute relating to gaols and gaolers, has applied to a Justice of the Peace and a Judge of the County Court, for a citation to his creditor, to show why he should not be admitted to the benefits of the act. That such proceedings were had by the Court. That on the 12th of November, 1800, they admitted the defendant Morse to the oath prescribed in the act, and gave their opinion that he ought to be discharged from his imprisonment, and on the same day made and subscribed a certificate in the statute form, and delivered it to the prisoner, and also another certificate, which they delivered to the sheriff as keeper in chief of the prison, in both which, in the words of the statute, they declared, that in their opinion the prisoner Morse ought to be discharged.

The Question is, what is the legal operation and effect of these certificates ?

The condition of the bond declared upon is in substance that the prisoner should remain within the liberties of the prison until legally discharged. The bond is prosecuted by the assignee of the sheriff, and the plaintiff stands in his shoes. If the mesne process is defective, will these certificates operate a legal discharge of the prisoner ?

It appears, that the Legislature, in pursuance of the spirit of the constitution, have provided, that a poor citizen, imprisoned for debt on contract, shall not be deprived of his personal liberty upon proof of his poverty before a proper Court. A Court has been constituted for this purpose, from whose decision there is no appeal, and no writ of error lies. But the act gives them plenary power to correct defects in their process, and to tax costs against the applicant. The Court may likewise examine the prisoner upon a voire dire, may hear evidence to controvert his testimony, and may adjourn from time to time, • until they obtain all the evidence of which the subject is' capable. If in their opinion he ought not to be admitted to the oath, he must remain in prison; and if he make a second application, it must be to the same magistrates if in office; but if the Court are of opinion that he ought to be admitted to the oath, it is then administered, and the Judge and Justice make out two certificates under their official signatures* one to be delivered to the prisoner, and the other to the keeper of the gaol, certifying that such oath has been administered, and that in their opinion the prisoner ought to be discharged. The prisoner, after paying certain charges, in the words of the statute, shall thereupon be discharged, and his body be thereafter exempted from execution for the same debt.

In what situation do these proceedings place the sheriff or the bail ? In case the debtor is a close prisoner, and the certificate is delivered to the sheriff, and doubts should arise as to the correctness of the mesne process, is the sheriff to be subjected to this dilemma, either to liberate his prisoner, and risk an action for an escape, founded on the supposed irregularity of the mesne process; or shall he, by closing his prison bars on the debtor, expose himself to an action for false imprisonment ? or shall this certificate be a sufficient justification to the sheriff, however irregularly obtained ?

Will the case materially differ, if the debtor be admitted to the liberties of the prison ? In such case, what will be the effect and operation as to the sheriff and the bail ? for the sheriff is here interested. Although the action is brought by his assignee, it may be but a preparatory step to an action against him for an escape; for should the bail fail to respond the debt, an action lies directly against the sheriff, and he would be driven to the very defence made in the plea in bar; and in such defence the effect and operation of the certificate would present, itself in the same point of view as it respected the sheriff, as if the debtor, had been his close prisoner.

In an action against the bail, the same defence is made, and the pleadings will turn upon the legal effeet of the certificates, abstracted from any defects in the mesne process before the Court of Gaol Delivery.

J. H. Hubbard and Jonathan Ware, for the plaintiff. William Mattocks, for defendants.

Upon the point of the legal effect and operation of these certificates, it appears to the Court, that as the statute does not go to' defeat the debt, but merely to discharge the imprisoned debtor, and to exempt his body from a subsequent commitment upon the same demand, as the Legislature have constituted a Court of original and exclusive jurisdiction, to issue mesne process to decide upon the regularity of such process, and have finally rested the discharge of the prisoner solely upon their opinion after hearing, that all defects in such process can only be taken advantage of before them. That when the Justice and Judge make out the statute certificates, an exhibition of them to the sheriff, or even of that peculiarly addressed to him as keeper in chief of the gaol, is a sufficient. warrant for him to liberate the prisoner if closely confined, and a sufficient justification against any escape, if the prisoner be admitted to the liberties. That the certificate alone, without setting forth circumstantially the mesne process, is a sufficient bar to an action of debt on the prison-bond, when brought against the bail.

These arc the present impressions of the Court. They are, however, inclined to hear argument.

Upon these observations being made by the Court, the counsel for the plaintiff declined further argument, and judgment was entered for the defendant.