Banks v. Johnson

PaRker, C. J. The statute, authorizing two justices of the peace and of the quorum to administer the oath or affirmation prescribed by law for any person arrested or imprisoned upon execution, and who may be entitled to take the same, requires them, if they administer it, to make a certificate, in the form prescribed, which sets forth that the debtor, at the time named, took the oath as prescribed by law, and that the creditor, (or his attorney,) having been duly notified, did, (or did not,) attend. It also requires them to make a return of the petition, and their doings thereon, to the office of the clerk of the common pleas, and that copies shall be given, &c. 2 N. H. Laws 95. It is evident that the certificate thus to be returned was [450] intended to be evidence, to some extent, of the facts set forth in it; but there seems to have been some diversity of opinion respecting the character of this evidence. In Flanders vs. Thompson, 2 N. H. Rep. 421, it was said that there was no pretence for the supposition that such a certificate was conclusive evidence of notice to the creditor, and there was an expression of opinion that it was not even competent evidence to go to a jury. But in Osgood vs. Hutchins, 6 N. H. Rep. 375, it was held that it must be regarded at least as prima facie evidence of the service of the notice. Reference was there made to the case Haskell vs. Haven, 3 Pick. R. 406, which was supposed to have settled, that in that state similar certificates were to be regarded as conclusive evidence of the fact of notice ; and it was suggested that it would seem that it should be equally conclusive under our statute; but that matter was left unsettled. The opinion, or dictum, in Haskell vs. Haven, has been followed in Maine, the certificate being there held to be conclusive. 3 Fairf R. 418, Agry vs. Betts; 1 Shepley 240, Black vs. Ballard. But in Slasson vs. Brown, 20 Pick. 436, it was held that it was not conclusive, and that the creditor might go behind it, and show irregularity in the previous proceedings, overruling so much of the opinion in Haskell vs. Haven. This is in accordance with Putnam vs. Longley, 11 Pick. R. 487; Little vs. Hasey, 12 Mass. 319; and with Bunker vs. Nutter, 9 N. H. Rep. 554. In Raymond vs. Southerland, 3 Verm. R. 494, the court were divided, the majority holding the certificate conclusive upon the question of notice ; Mr. Justice Thompson saying that he yielded to the weight of authority; but upon principle, aside from the authorities, he agreed with the opinion of the chief justice, who dissented upon that point. We are satisfied, upon consideration, that the certificate should not be regarded as conclusive evidence of the proceedings. The statute, in providing that the justices shall make it, and return it, and that copies may be given, must [451] have intended to give to it the character of evidence of the facts required to be stated in it. What degree of credit it shall receive is not stated. It is not technically a record, nor is it so called; and there are sufficient reasons, in the nature of the case, to show why it should not be so regarded, or possess the “incontrollable verity” attached to a record. If the proceedings of the debtor, in causing the petition to be made and served, and of the magistrates, in hearing and administering the oath, are regular, all the effect which the statute contemplates follows from the proceedings. There is no appeal. If they are not regular there should be some remedy, and the true course seems to be to regard them as void. 9 N. H. Rep. 63, Gear vs. Smith. It is not a case for error. The proceedings are not according to the course of the common law, nor is there any thing to reverse, unless it be the certificate, which seems not to be a proper subject of reversal. Nor does it appear to be a proper matter to be brought up on certiorari, and quashed for irregularity. It is not in the possession of the magistrates who made it. They cannot send it up, and the character given to it by the statute is that of a certificate, and not that of a record. The statute does not require them to keep any record of those proceedings, unless the general statute requiring justices of the peace to keep records of all their proceedings, may be supposed to require each justice to make a separate record. There is no provision for any joint record. Should they make one, that might, perhaps, be received in evidence, as the certificate may be ; but it is questionable whether it could have any higher character. It would be proper to return it to the clerk’s office, with the certificate and other papers, for no other place is appointed for its custody. The record of an adjournment ordered by one, because of the absence of the other, is evidence. Chesley vs. Welch, (10 N. H. Rep. 252;) but it is not said that it is conclusive. [452] Regarding the proceeding before the magistrates as a judicial proceeding, (and it is in the nature of one, 9 N. H. Rep. 64,) if there were no petition according to law, there would be no jurisdiction, and no record which could be made would avail as evidence. And so if no sufficient notice is given, so that, the creditor may appear and object ; or if there is any other irregularity depriving him of the rights the statute intended to secure to him, it may, perhaps, be said that the magistrates have not jurisdiction to proceed and administer the oath. 13 Pick. R. 92, Bell vs. Austin. They certainly have no right to do so. And in Dean vs. Lowry, (4 Verm. R. 481,) it was held that if the commissioners omitted to give notice according to the statute, their proceedings were irregular and void ; and that the certificate, in which it appeared that no such notice was given, was no justification to the sheriff in permitting the debtor to depart. If one of the magistrates is a near relative to the debtor, the proceedings are void. 9 N. H. Rep. 63. If the proceedings might be quashed on certiorari, and an action then sustained on the bond, the same result may as well be attained in one proceeding ; and such seems to have been the usual course. Where the return of an officer is regarded as conclusive, an action lies against the officer if the return is false. See Hall vs. Tenney, (11 N. H. Rep. 516, 520.) But it has not been decided that an action will lie against the justices for an error in certifying that the creditor had notice. The creditor should certainly have some remedy, if the condition of his bond is in fact broken. If the debtor is in prison at the time, the certificate may perhaps furnish a conclusive justification for the gaoler in letting him go at large ; because it is his duty to act upon it, and he has no means of trying, or inquiring into, the truth of the facts. 3 Verm. R. 499. But the debtor himself, and his sureties who have undertaken that he shall either duly take the oath or surrender himself, do not come within the principle. [453] We have no doubt that the justices may adjourn for a reasonable time, whenever it becomes necessary in the performance of the duty. It is an incident to the authority given, as otherwise all the proceedings might be defeated if they could be protracted long enough. The hearing must undoubtedly be had at the time and place, unless it is delayed by an adjournment. If the justices were to meet the debtor at a different place from that mentioned in the notice, and administer the oath, it would not avail; and so if they should proceed at a different time. But what period is to be regarded as within the time, seems not to be well settled. It cannot be required that they should proceed at the precise moment indicated by the notice. Any time within the hour has always been considered as within the time, and is admitted to be sufficient in this case. It may be regarded as a general rule, that the party who has given the notice is required to proceed within the hour, unless the matter is postponed. The adverse party cannot be bound to await the pleasure of the debtor, or the justices. Punctuality in cases where others are required to be in attendance, if not one of the cardinal virtues, stands high in the list, and unnecessary delay can receive no countenance whatever. We shall not determine, at this time, that there may not be exceptions, where the party notified may reasonably be required to attend longer than the hour, although the proceedings are not commenced within the time ; but if there are such cases, they must form exceptions to the rule, and stand upon their own merits. Upon a new trial this matter can be inquired into. Verdict set aside.