Brown v. Foster Others

Brayton, J. The first point made by the defendant in the argument of this demurrer is, that all the facts set forth in the plea are alleged by way of inducement only, and as the inducement is followed by a special traverse of the breach alleged in the declaration, the plaintiff is not at liberty to traverse any portion of the inducement, and must join in the issue tendered *574 by the special traverse. The declaration setting out the condition of the bond, that the debtor should remain a true prisoner in the custody, &c., until he should be lawfully discharged, without committing any manner of escape or escapes during the term of his restraint, alleges for breach, that during the time of his restraint he did escape and go off and beyond the limits of said prison, without being lawfully discharged from such his commitment. The rule referred to by the defendant, and of which he claims the benefit, requires, that ihe matter of the inducement should not only be in substance a sufficient answer to the last pleading, but should not contain a direct denial, nor be in the nature of a confession and avoidance; the special .traverse being necessary or proper only because the inducement, while it furnishes a substantial answer to the prior pleading, contains no direct denial. Stephen on PL.179. The defendants’ plea alleges, that before the pretended escape, two justices of the peace had administered to the prisoner the poor debtor’s oath, and that, thereupon, they gave him a certificate that he was discharged from imprisonment, and that, thereafterwards, he went beyond the prison limits, which is the same escape and going off and beyond the limits, complained of in the declaration. By this plea, the departure on a day certain from the prison limits, and out of the custody of the jailer and officers, is admitted, and is sought to be justified by the debtor’s having been admitted to take the poor debtor’s oath; and in alleging that this is the same escape alleged in the declaration, the plea, in effect, traverses that he escaped at any other time. The plea denies any escape except that which is justified; and that is admitted and avoided by the matter set up in the plea. There seems then to be no necessity for any further traverse, special or otherwise; certainly not, in order to obviate any objection that the plea otherwise would be argumentative. Com. D. PI. G. 3; 1 Saund. 22, n. 2, 209, n. 8 ; Gould on PI. ch. 7, § 34. In Inglebath v. Jones, Cro. Eliz. 99, the action was for words spoken in London. Plea, words at Essex; and an accord and satisfaction for all actions, &c., everywhere, except London. Replication, words at London, absque hoc that there was any such accord. Demurrer, and objection to the replication, that it trav *575 ersed the inducement to the defendant’s traverse. The traverse was held good; and it was said that the plaintiff hath the election to maintain his declaration that the words were spoken there and join issue, or he may by general words maintain his declaration and traverse that which is falsely alleged to take from him his action, and he is received to which plea.he chooses. In Paramour v. Varrold, Cro. Eliz. 418, the case was, false imprisonment in London. Plea, that the defendant was sheriff in Kent, and the recovery of judgment in Sandwich court, in Ként, and .that by virtue of a capias awarded thereon he imprisoned the plaintiff at Sandwich; absque hoc that he was guilty at London. Replication, imprisonment in Londoij; absque hoc that there was any such record; demurrer to the replication; and it was held, that the plaintiff might traverse the recovery of judgment, and for the reason before given,— that the alleged authority may be false, and if he must join on the issue tendered and could not deny the authority, he would, by the falsity of the defendant’s justification, be deprived of a right which the law gives him. So it is said of a trespass, if defendant pleads •a justification on a particular day, with a traverse that he is guilty on any other day, the plaintiff may pass by the defendant’s traverse, and traverse, the matter of justification ; and because the day mentioned in the justification may be the day of the trespass complained of and yet the justification may be false, if the plaintiff could not deny t'he justification, he must be defeated in his action though his rights were complete. Hob. 104; Com. D. PI. G. 18; 1 Saund. 21, 22, 23 ; Gould on PI. 7, § 48. In the case before us, the plaintiff, unless he can by the allegations contained in his replication avoid the discharge set up in the plea, must, or might, as in the case just stated, fail in his action, though the discharge was in fact utterly void -and furnished no justification whatever to- the defendant. This plea is not only traversable in this particular, but is faulty in its conclusion. Every pleading containing new matter which goes in avoidance of what is before pleaded must be followed by a verification, and must not conclude to the country. It is necessary that the pleading be kept open, in order to allow the other party to answer by new matter of his own, or other *576 wise to traverse ; and had the plea in this case not been by way of confession and avoidance, or had it not contained in the inducement any direct denial, and the special traverse thereon had been proper and necessary, the rule requiring the new matter set up in the plea to be left open would be the same. A conclusion to the country in a special traverse, says Stephen, page 181, is a novelty. The conclusion has always been with a verification till the rule of court, 4 W. IV. Another point made under this demurrer is, that the certificate, given by the justices in the form prescribed by the statute and as set forth in the plea, is conclusive evidence that the citation issued to the creditor and was served upon him in one of the modes prescribed in the statute, and that the plaintiff is estopped to aver that no citation was issued, or that it was not served upon the plaintiff, or that the plaintiff in fact was not notified of the time and place appointed to examine the debtor. The certificate given by the justices states, as is required by the act, that the debtor “ had caused the creditor at whose suit he was committed, to be duly notified according to law,” &c., and this is claimed as conclusive evidence that citation issued and was served upon the creditor. Whether the certificate is evidence of anything stated in it to have been adjudged and determined, depends upon the question whether the justices had jurisdiction to adjudge and determine. To this end, it is necessary that they should have jurisdiction not only of the subject-matter, but also of the persons of the parties to be affected. This question of jurisdiction is one which is always open whenever a judicial determination is offered as a ground of action or of defence, and the preliminary inquiry in every such case is, was the tribunal clothed with power to judge and determine ? The statute in this case provides, that upon the complaint of the debtor that he has no property, &c., and his request tó be admitted to take the oath prescribed, the justice shall issue a citation to the creditor, — that it shall be served by an officer either by reading it to the creditor, or by leaving an attested copy thereof at his usual place of abode seven days at least before the time appointed for the hearing. The issue of such citation and the service of it upon the creditor are necessary to *577 give the justices jurisdiction of the creditor; and the justices have no right to proceed and decide upon his rights, until he has been thus notified to appear and be heard. The statement in the certificate of the justices, that the debtor had caused the committing creditor to be duly notified, though required by the act to be made in the certificate, has not been held to be conclusive evidence that the statute notice had been given. It has been held, at most, as prima facie evidence of that fact, open to be rebutted by proof that no such notice was in fact given. Knight v. Norton, 15 Maine, 337; Wood v. Blodgett, 18 Ib. 569; Williams v. Burrill, 23 Ib. 144; Banks v. Johnson, 12 N. H. 445. N The defendant claims that upon other language of the statute, jurisdiction is given to the justices to determine the question of notice. The act provides, that at the time and place appointed, any two justices may “ examine the return of said citation, and if it shall appear to have been duly served, may administer the oath,” &e.; and it is claimed that by this language the magistrates are made the sole judges as to whether the citation issued or was served upon the creditor, and that the certificate embodies their judgment that a citation was issued and served. Some of the cases cited from Maine apparently support this view. Had the justices who granted the certificate in this case examined any return of a citation issued to the creditor, and had thereupon determined that it appeared to have been duly served, the case would have been supported by the case of Agry v. Betts, 12 Maine, 415; Carey v. Osgood, 18 Ib. 152, and Waterhouse v. Cousins, 40 Ib. 333. In all these eases it appeared from the record of the justices that they examined the return of the notification, and that it appeared to them to be duly served. It may be said with some plausibility at least, that the justices had adjudged the return sufficient, assuming that there was a citation and return thereon, — that they exercised their judgment upon a state of facts contemplated by the act. That state of facts was, in the contemplation of the statute, that a citation had been issued by the justice to whom complaint had been made and had been served by an officer in some mode, and that he made reten of his *578 doings thereon. This state of facts at least was necessary to be shown before it conld appear that the justices were entitled to form any opinion, or to do any act whatever towards an examination of the debtor. The power of the two justices commenced from that, and not before. Their jurisdiction in fact depends upon the service of a citation upon the creditor, and before the adjudication of the justices can be allowed to have any effect, it must appear, that the creditor had the notice required. There is nothing in the act 'which renders it necessary to depart in any degree from the great principle which lies at the foundation of all legal proceedings, that no man shall be bound by any judgment or determination of which he has had no notice which would give him an opportunity to be heard. By a series of cases the courts of Massachusetts have held that such notice is necessary to the validity of any proceeding by the justices to administer the oath to any person applying therefor, and that their certificate stating that due notice had been given, — though it is prima facie evidence of such notice, — is =no,t conclusive upon that point, but that the court may look behind the certificate into any irregularity of the justices in their proceedings, and if the citation be not directed to the proper party, as in Slasson v. Brown, 20 Pick. 436, or if only one of several partners, creditors, was notified, as in Putnam v. Longley, 11 Pick. 489, the proceedings were void. In Park v. Johnson, 7 Cush, 265, the certificate was held void because the return of the officer did not show that the citation had -been served sufficiently early. These decisions are made under a statute which requires a statement in the certificate that due notice has been given, and also requires, by language as strong at least as that contained in .our act, that the justices be satisfied, before granting the certificate, of all the facts required to be certified. They proceed, however, upon the ground, that the question of jurisdiction is always open, and that every jurisdictional fact may be put in issue and must be established by proof before the judgment itself can be allowed any effect; and this undoubtedly is the rule of law. The replication in this case is not objectionable therefore that it alleges that no notification was issued to the creditor, that being a fact which must be estab *579 lished in order to make the discharge valid, nor is it objectionable that it alleges that it was not served upon the plaintiff, that being also a fact to be established. The replication therefore must be sustained and the demurrer overruled. But the plaintiff claims that the pleas of the defendant, replied to by the replications to which the demurrer is filed, are bad and insufficient, and asks for the same judgment thereon as if he had himself demurred thereto. The conclusion of these pleas to the country, instead of concluding with a verification, being matter of form rather than of substance, will not, under the ruling in Appleby v. Ellis, 4 R. I. 462, warrant a judgment against the defendants ; but the court will order the conclusion to be amended. A further objection made by the plaintiff is, that the pleas do not show jurisdiction in the justices, and that when a party seeks to justify under the proceedings of a tribunal of limited jurisdiction, everything essential to their jurisdiction should be averred. The objection is made mainly to the defendant’s second plea, which it is objected is defective because, it does not state that a citation issued to the creditor, or was served upon him, or that the debtor complained to the justice “ that he had no property,” &c. wherewith to support himself in jail. The case relied upon by the plaintiff is Frary v. Dakin, 7 Johns. 75. The rule announced in that case is, that in pleading the judgment of an inferior court, it is sufficient to state such parts only as show jurisdiction in the court, and you may then conclude with a taliter processum est, setting forth the judgment. There are many examples of pleading a discharge of the nature here set up. If they are to be taken as illustrations of the rule of pleading, it is only necessary to aver such facts as show the subject-matter to be within the jurisdiction of the court. Doe v. Parmenter, 2 Lev. 81; Marks v. Upton, 7 T. R. 301; Ladbroke v. James, Willes, 199; Rowland v. Veale, Cowp. 18; Cotterel v. Hook, Dougl. 97; Turner v. Beale, 2 Salk. 521; Paris v. Salkeld, 2 Wils. 139; Service v. Heermance, 1 Johns. 91; Preble v. Kettle, 2 Ib. 363; 7 Ib. 78; 1 Ld. Raym. 80; 2 Mod. 195. It is said by the court in 2 Lev. 81, “ it is well enough to set *580 forth a plaint levied; ” and in Cowp. 18, Ld. Mansfield said, the plaint is set out in Levinz, 176, in the same general way, and so in Lilly’s Register, 195, and so in Lutwyck, 914, and holds it sufficient, without averring process, to proceed directly to set out the judgment. And in Ladbroke v. James, Willes, 199, it is said, that if it had appeared that the sessions had jurisdiction, it would have been sufficient to have said generally that the sessions discharged him, and they would not inquire into any fact necessary to obtain the discharge, of which the sessions were the only judges. In Adams v. Freeman, 3 Wilson, 5, it appeared that a plaint was levied, and the objection upon demurrer was, that it did not appear that any summons issued; but the court said, taliter processum est was sufficient, and they would presume everything regular below. Indeed, there is no case in which it is held that it is necessary to aver a summons or notice to the other party. In Turner v. Beale, 2 Salk. 521, the objection taken upon demurrer to the plea was, that although it showed that the subject-matter was within the jurisdiction of the justices, yet that it did not appear that the party petitioned them ; and the plea was overruled for that cause. It was said in that case by Holt, that the sessions cannot inter-meddle but upon application. The plaint in this case was wanting to give the court jurisdiction. “ The plaint,” (in the language of Ld. Mansfield in Rowland v. Veale, Cowp. 18,) “ is in the nature of an original writ. A. E. queritur v. C. D. de plácito transgressionisP It is the complaint upon which relief is prayed. In the case cited by the plaintiff, 7 Johns. 75, the plea was overruled because it did not appear that the application made to the judge was made by the insolvent in the mode prescribed by statute for making such applications, viz.: that three fourths in value of his creditors should unite in the application or plaint, and the court held that without it the judge had no jurisdiction. He had no general jurisdiction over insolvents, but only a limited one. This case follows the rule announced in 1 Johns. 91, Service v. Heermance, that it was sufficient to set forth the plaint, and thereupon to say taliter, 8fC. In that case it was alleged that the debtor’s petition was joined in by three fourths in value of the creditors, and the court held *581 that allegation to be sufficient to give jurisdiction, and to show that the plaint was made in conformity to the statute. The second plea of the defendant does not aver that any complaint was made to the justice that the debtor here had no property, &c. wherewith to support, himself in prison, and asking to be admitted to take the oath, and for this defect the second plea must be overruled. There is no such defect in either the third or fourth pleas. They both show the plaint made which the statute requires, and those pleas must be sustained.