1 D. Chip. 37

Paine vs. Ely and others.

Particular jurisdictions derogating from the jurisdiction of the Courts of Commtfff Law, are to be taken strictly, and cannot be extended farther than the statute giving the jurisdiction will warrant.

If a prisoner, being Principal in a bond for the liberties of the prison, depart without being lawfully discharged, the sureties in the bond are entitled to no par ticular favor; but in every such case are equally liable with the Principal.

THIS was an action on a bond assigned by the Sheriff of Windsor County to the plaintiff, conditioned, that Joel Ely, then a prisoner in the common gaol in said Windsor, on execution in favor of the plaintiff, should not depart the liberties of said prison, &c. (in common form.) Breach assigned, that the said Joel did depart, contrary to the condition; whereupon, &c.


December 1789.

Buck, for the defendants,

pleaded in bar, in substance, that after the execution of said bond, viz. on the 29th day of June, 1789, the said Joel Ely made application to Elias Weld, one of the Judges of the County Court, for said County, who thereupon issued his citation for the said Paine to appear at-on-before Elijah Robinson, one of the Judges of the County Court for said County, and John Weld, Justice of the Peace, to shew cause why the said Joel should not he admitted to the insolvent debtors’ oath, which citation was regularly served, &. That on -..........at — *38the said Robinson and Weld proceeded to examine'the said Joel, and did administer the oath, and give a certificate thereof agreeably to the statute in such case made and provided. That the said Joel thereafter remained within the said prison and the liberties thereof, for the space of twelve hours — that no provision being made for his support, as directed by the statute, he departed; that until that time he had remained within the liberties of the said prison, according to the condition of the said bond.

To this there was a demurrer and joinder.

Hutchinson and Jacob for the plaintiff,

contended that the statute in this case has created a summary jurisdiction, that the Justices derive their authority solely from this statute, that they must pursue their authority precisely as pointed out by the statute, otherwise the whole is coram nor judice. The statute requires that on application of a debtor confined, &c. to two Justices of the Peace, one of whom shall be judge, &c. they, or either of them, shall issue a citation to the creditor or creditors, at whose suit, &c. notifying them to appear before such Justices at a time and place therein mentioned, to shew cause, &c. — that the citation in this case was not issued by the Justices who administered the oath, or either of them, therefore they had no jurisdiction. One set of Justices are not empowered by the statute to convene the creditors before another set of Justices.

Buck, for the defendants,

contended that the statute, as it provides for the relief of poor debtors, is remedial, and ought to be construed liberally. Elias Weld had a right to issue a citation; elijah Robinson and John Weld are such Justices as have a right to hear, examine, and administer the oath. There cannot therefore be a want of jurisdiction, as urged by the plaintiff’s counsel.

It is likewise a case against bail, who ought to be favoured. — It would be hard that either bail or principal should be accountable for the doings of the Justices — their proceedings, if irregular, .ought to be reversed; but until reversed, ought to be deemed valid — otherwise, sheriffs and gaolers, who are no judges in this matter, may also be exposed. It was also insisted that “such Justices” in the statute does not mean the same Justices who issued the citation, but similar Justices; — had it intended the same Justices, the word “ aforesaid” had been used.

The plaintiff’s counsel in reply. This is not a remedial statute,*39if it gives a privilege to the debtor, at the same time it takes away the common law right of the creditor. It is a rule that all summary jurisdictions must confine themselves strictly to their powers. Neither writ of error nor certiorari will lie ; if advantage cannot be taken of the irregularity in this way, the creditor has no redress, be the proceedings ever so illegal and unjust.

Chipman, Ch. J.

The statute in question gives a privilege to the debtor, in derrogation of the common law right of the creditor ; the right of holding the debtojr in custody until he obtain legal satisfaction. This privilege is given to the debtor, not for his own sake, but for the sake of the publick, who are interested in his labour, and in favour of humanity. The debtor does not demand a remedy against the creditor for an injury he has sustained, the statute is not, therefore, technically speaking, remedial; .but, the case does not turn on this point. The question is, whether there has been any fatal irregularity in the proceedings of the Justices, and whether the plaintiff can take advantage of it in this action.

The jurisdiction of the Justices, in the case under consideration, is in derogation of the jurisdiction of the common law Courts — the proceedings are summary, not warranted by the course of common law proceedings, but warranted solely by the statute. Blackstone observes, after Sir Edward Coke, that “Particular jurisdictions derogating from the general jurisdiction of the Courts of common law are ever taken strictly, and cannot be extended farther than the express letter of their privileges will warrant.” This observation is applicable to the mode of proceeding in the case under consideration, as well as to the jurisdiction of the Justices. The mode is pointed out and regulated, not by the common law, but solely by the statute 3 and must be strictly pursued. A different mode cannot be adopted, under pretence of its being more convenient for the debtor, or for the Justices. This would be to assume an arbitrary power not warranted by law. In this case there has been clearly a deviation from the mode prescribed. The words of the statute so far as relates to the present question, are, “ on application to two Justices of the Peace, one of whom shall be a judge,” &c__They, or either of them shall issue a citation to the creditor or creditors at whose suit the prisoner is confined, notifying him or them to appear before suck Justices, &c. The word ‘such’ is here a relative, referring to the Justices to whom application has been made, and who *40have issued the citation, and has precisely the meaning of this expression : — u the same Justices to whom application shall have been made as aforesaid.” In the sqjne sense the word occurs not less than ten times in this paragraph. To give it the construction contended for by the defendant’s counsel, would run the statute into absurdity and nonsense: — thus, On application to two Justices, &c. they, or either of them, shall issue a citation to the creditor or creditors, &c. to appear before some such-like Justices, &c. which citation shall be served on some such-like creditor or creditors, at least twenty days before the time of appearance in some such-like citation, & c.” It is clear from the statute that Elias Weld had no power to issue a citation to the creditor to appear before any Justices, of whom he was not to be one. This jurisdiction is not incident to .the office of Justice, but is given by the statute to those, to whom application is made. It might have been given to any other class of men, as for instance, to afty two freeholders, to whom application shall be made. Had that been the case, no one would have thought, that one freeholder might have cited the creditor to appear before other freeholders. The consequence is that the proceedings of Elijah Robinson and John Weld are wholly irregular. The only remaining point is whether the plaintiff can take advantage of such irregularity in this action. There is great difference between erroneous process, and irregular (that is void) process; the first stands valid and good, until it be reversed; the latter is an absolute nullity from the beginning. The party may justify under the first, until it be reversed; but he cannot justify under the last, because it was his own fault that it was irregular and void at first.” 3 Wils, 341. Parsons vs. Lloyd. 2 Black. Rep. 845.

The citation was irregular, — The whole proceedings are, therefore, void from the beginning, and do not stand in the plaintiff’s way. Beside there is no mode of reversal in this case.

The bondsman is entitled to no particular favor; he has engaged against the default of the principal; to admit any excuse for him which would not equally avail the principal, would be to deprive the sheriff or the creditor of their indemnity. As to the principal, every man who procures a process (or indeed any proceeding at law) in his favor, must see that it be regular at his peril.

Smith and Knight, Is. were of the same opinion.

Judgment for the plaintiff.

Paine v. Ely
1 D. Chip. 37

Case Details

Paine v. Ely
Decision Date
Dec 1, 1789

1 D. Chip. 37




Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!