Jenkins v. Newell

Hubbard, J. The only question presented for the consid- eration of the court is, whether the notice served upon the judgment creditors was in conformity to the requirements of St. 1842, c. 56, $ 1. If the notice was given through an officer not authorized by the statute, it is then contended that such defect is fatal, and avoids the discharge ; the certificate of the magistrates not being conclusive evidence of the regularity of the prior proceedings. Little v. Hasey, 12 Mass. 319. Putnam, v. Longley, 11 Pick. 487. Slasson v. Brown, 20 Pick. 436. The argument of the plaintiffs’ counsel is, that the debtor, [305] after giving the bond, was no longer in the custody of the jailer; was not .within the four walls of the prison, nor subject to his watch and control; and that the jailer had no more authority to arrest him than any person accidentally within the prison limits, and consequently was not an officer having him in custody, within the meaning of the law, and therefore not legally capable of receiving the notice and communicating it to a justice ; a legal notice being necessary to sustain the subsequent proceedings. 11 Pick, ubi sup. The St. of 1842, c. 56, (now repealed,) was remedial, ana was intended to provide for all cases of debtors arrested on mesne process, or on execution, who were desirous of taking the oath prescribed for poor debtors ; directing the manner of giving notice to the creditors, and also imposing it as a duty upon the officer, at the time of making the arrest, to inform the debtor of his right to take the oath, after giving the requisite notice. The first section of the statute embraced, in the same paragraph, the several cases of a debtor arrested on mesne process, and one taken on execution; and he was authorized to “give verbal or written notice to the officer having him in custody, or if he be then bailed, then to the officer making the arrest.” In the case at bar, the judgment debtor was taken on execution, and after his commitment, he gave a bond for the liberty of the prison limits ; which bond is now in suit. The notice, which he gave, of his intention to take the poor debtors’ oath, was to the jailer, and not to the officer who committed him. We are of opinion that the notice was given to the proper officer. The statute did not mean to leave cases unprovided for, and to hold persons in confinement for want of a proper officer, by whom a notice of the intention to take the oath might be legally served. The officer who made the commitment had no longer any authority over the debtor; he had no right to retake him, or to hold him in custody, at the request of another. He had fully discharged his duty, and his official responsibility had terminated. [306] The jailer was the officer to who^e custody he was committed, and by whom he was held in close confinement till he was admitted to the liberty of the prison limits by force of his bond. The debtor continued a prisoner, within the meaning of the statute; and while the bond relieved him from the inclosure of the prison walls, it did not permit his going beyond the prison limits with impunity; and though not subject to the strong hand of the jailer, for which the bond was the substitute, still it was to the jailer that he was, by law and by the condition of his bond, to surrender himself for the purpose of being committed to close confinement. Rev. Sts. c. 97, § 63. The jailer was, therefore, the officer having the debtor in custody, according to the intent and within the meaning of the statute ; and whose duty it was to serve the notice on the creditors, and to receive their debtor as a prisoner in case of his surrender; and whose responsibility, as an officer, though in part suspended, was never terminated until the debtor was legally discharged. Plaintiffs nonsuit