Fernald v. Noyes

30 N.H. 39

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Woods, C. J.

The Revised Statutes, ch. 200, § 1, provides that any one imprisoned on execution, or who has given bonds pursuant to law, may apply to any two justices of the peace and quorum, by petition, setting forth that he had not at the time of his arrest, or at any time afterwards, estate of the value of twenty dollars, &c., and praying to be permitted to take the oath thereinafter prescribed. The chapter further provides (§ 2) that the justices may make an order, on such application, appointing a time and place for hearing and considering the application; and the debtor shall cause the creditor, or his attorney, to be served with a copy of such application and order of notice thereon.

The first question arising upon the case is, whether such an application as is required by the statute was made. And upon reading the copy certified by the justices, we have no doubt such an application was made. The petition sets forth, in substance, the facts required to be set forth, and the only question made by counsel is, whether the debtor prayed to be admitted to take the oath prescribed. No form of words is pointed out by the statute, nor does it in terms require, although it may, perhaps, fairly be inferred, that the petition must be in writing. It is, undoubtedly, a sufficient compliance with the statute, if the debtor present to the justices a written statement of the necessary facts entitling him to the benefit of the oath, and containing apt words to indicate the wish of the applicant to be admitted to that benefit. If the word oath be omitted, and yet supplied by some other expression, by which the request of the applicant may be apprehended, it cannot reasonably be doubted that the application would be sufficient. We think that enough is contained in this application for that purpose, and that no one reading it, who could have understood it without the omission, could fail to understand it, notwithstanding the omission.

The statute further requires that the justices make an order, appointing a time and place for considering the application, and that the debtor cause a copy of the application and order to be secured upon the creditor or his attorney. This order seems to have been made, but it is said it was not signed, and that the supposed copy which was served, bearing the signatures of the justices, was so far a deviation as to vitiate the service.

The statute does not require the order to be signed by ■the magistrates, and if it did, there seems no objection to the correction and enlargement of the record, in this or any other particular, at any time, so far as it may be necessary to put it in form, and so far as may be consistent with the entry actually made.

The copy was served upon Mr. Gates, who was one of the two attorneys retained by the creditor in the original cause. The statute does not require that service should be made upon all the attorneys that may happen to be engaged, and the fact that the two gentlemen who appeared for the plaintiff commonly acted together in conducting causes in court, does not devolve upon the other party any other burdens than would otherwise attach to them by law or the practice of courts. When notice is required to be given to the attorney of a party, it may be given to any one of any number who may have actually appeared for him. The law was fully complied with, in this case, and the exceptions as to the notice must be overruled.

The power to “ adjourn ” is expressly conferred by the statute upon the justices, in cases like the present. Although in strictness of etymology, that may not embrace the changing the place as well as time of the proceeding, yet by common usage and intendment, it has the larger meaning. Comp. Stat. ch. 182, § 5.

Upon the whole, we are of opinion that there must be

Judgment for the defendant.