Hoar v. Commissioners of Jail Delivery

Prentiss, J. delivered the opinion of the court. — The judgment on which the execution was issued against the prisoner, by virtue of which he is confined, was rendered at the stated term of the county court holden in April, 1828, and the adjudication that the act from which the cause of action accrued was wilful and malicious, was made, and entered upon the record, at a term of the court holden by adjournment in June after. By the statute of 1823, it is enacted, that every person, who shall be imprisoned [403] by virtue of any execution, issued on a mdgment, recovered m any action ol debt, detinue, replevin, ejectment, trespass, or trespass on the case, shall be entitled to all the benefits and privileges of the “ act relating to jails and jailors, and for the relief persons imprisoned therein,” and of the several acts in addition thereto, unless the court, rendering such judgment, shall, at the time or term oj rendering the same, adjudge that the cause of action accrued from the wilful and malicious act or neglect of such person, and a minute thereof be inserted in, or endorsed and certified upon such execution. (Comp. Stat. p. 240. s. 1.) On common principles, a court holden by adjournment is not a new term, but a continuance of the former term of the court. — The King vs. The Justices of Sussex, 7 T.Rep. 103. — Commonwealth vs. The Justices of Norfolk, 5 Mass. 435.) — Our statutes, however, seem to treat a court holden by adjournment .as a new term, and in various instances speak of a stated session and an adjourned session of the court as being different and distinct terms.— Thus, no writ, in any civil action, shall be made returnable to any adjourned county court. A grand jury may be summoned to attend any stated or adjourned session of the county court. An appeal from the judgment of a justice of the peace, shall be taken to the next county court, whether the same be an adjourned or stated term. A report of referees, under a rule issued by a justice of the peace, shall be made to the next county court, whether it be an adjourned or staled session thereof. On these, and various other provisions which might be mentioned, we are inclined to think, that a term of the court holden by adjournment, under our statutes, must be considered a new and distinct term, and nota continuation of the former term of the court. Asjudg-ments here are considered as rendered on the last day of the term, this principle will remove all doubts as to the time when executions may regularly issue, as well as save many questions as to the liability of bail and of property attached, and will be more convenient as well as consistent in practice. The statute, as we have already seen, is express, that an adjudication, that the act, from which the cause of action in any case accrued, was wilful and malicious, in order to have any effect, must be made at the term when the judgment is rendered ; and as the adjudication, certified upon the execution upon which the prisoner is confined, cannot, on the principle we have adopted, be considered as made at the term when the judgment was rendered against him, it cannot preclude him from the benefit of the oath prescribed for poor debtors. The consequence is, that the rule must be made abso [404] lute for the writ oí mandamus to issue, directing the commissioners to receive and hear the application of the prisoner, and allow him the benefit of the oath, notwithstanding the certificate upon the execution, if he shall appear to be otherwise entitled to it. Rule absolute.