Burnham v. Adams

4 F. Cas. 766, 2 Cliff. 569

• Court: U.S. Circuit Court for the District of Maine
• Decided: September 15, 1866
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

Such a motion as this is properly addressed to the judge’s minutes, which cannot be controlled, not even by the agreement of the parties, without the concurrence of the court. Where there is no dispute about the facts, however, the practice of reducing the facts to an agreed statement as a means to prevent misreeolleetion is without objection. The parties in this case have reduced the facts to writing, and the agreed statement appears to be correct.

(At this point the court rehearsed the facts substantially as they appear in the statement.)

The views of the:plaintiff are, that the discharge by the justices was valid, and that it entitled him to a discharge from prison. Dyer recovered judgment against him, on which execution was duly issued, and he was arrested on that execution. Persons so arrested may be released by giving bond to the creditor for double the sum for which they are arrested, with surety or sureties, approved as required, and proceeding as provided in the act for the relief of poor debtors. The conditions of the bond are required to be that he will, within six months thereafter, cite the creditor before two justices of the peace and of the quorum; submit himself to examination and take the oath prescribed in section twenty-eight; pay the debts, interest, costs, and fees arising in said execution; or, deliver himself into the custody of the keeper of the jail to which he is liable to be committed under said execution. Execution debtors giving such a bond may fulfil the conditions, and discharge the same, and thereby relieve their sureties on the bond, in any one of three ways; first, they may cite the creditor as required, submit themselves to examination, and take the prescribed oath; second, they may pay the debt, interest, costs, and fees arising in the execution; third, they, may deliver themselves into the custody of the keeper of the jail to which they are liable to be committed under said execution. The right of choice is in the debtor, and the case shows that he selected the first mode. The requirement in that case is, that he “shall apply in writing within the time limited in his bond, to a justice of the peace in the county where he was arrested,” claiming the benefit of the oath, authorized in section twenty-eight; and the provision is, that the justice shah appoint a time and place for his examination, and issue a citation to the creditor under his hand and seal. Due service must be made, as provided, and the examination must be before two justices of the peace and quorum for the county; and if on such examination and hearing the justices are satisfied that the debtor’s disclosure is true, and they do not discover anything therein inconsistent with his taking the oath, they may administer it to him. Rev. St. 640. In this case the debt- or cited the creditor, and the justices organized the court, and the. disclosure progressed for several days. But the six months limited in the bond being about to expire, the plaintiff, as he had a right to do, changed his mind, and elected to pursue the third mode to fulfil the condition of the bond, and accordingly voluntarily surrendered himself on the execution, by a formal surrender in writing, to the keeper of the jail in the county of Cumberland, where he was when arrested. When he thus surrendered himself, and was taken into custody by the jailer, he was legally imprisoned under the execution, and the prior bond which he had given was discharged. Neither he nor his sureties were any longer liable on that bond. They had fulfilled its conditions, and it was functus officio. The imprisonment of the plaintiff commenced at the date of his committal, made in pursuance of his voluntary surrender. The prior proceedings before the justices were based on the bond given to release the debtor from the arrest made by the officer, and not on the imprisonment of the plaintiff, which took place subsequently. Those proceedings legally came to an end when the debtor elected to fulfil the conditions of the bond by delivering himself into the custody of the keeper of the jail, and that determination had been carried into effect. Such surrender, and commitment in pursuance of it, has the effect to change the character of the debtor, as he then becomes a debtor not under arrest by an officer, or under bond to cite the creditor, but a debtor imprisoned in the jail, liable to perpetual imprisonment unless he gives a new bond, or is discharged in some of the modes provided by law. Being in jail he may still apply to a justice of the same county, or at his request, the jailer shall apply in his behalf, claiming the benefit of the poor debtors’ oath. The form of the certificate to be given by the justices as evidence of the discharge of the debtor is different in the latter case from that in the former. Independently, therefore, of any decision, I am of the opinion that by the true construction of the poor debtors’ act, the proceedings of the justices, after the voluntary surrender and commitment of the plaintiff, were without any legal effect and void; but the decision of the supreme court of the state is to the same effect, and that, I think, ought to be regarded as conclusive. Garland v. Williams, 49 Me. 18.

Reference is made to the fact that the judges were not unanimous, but that cannot make any difference, as the opinion of the majority is the opinion of the court.

Judgment on the verdict.