Priest v. Tarlton

3 N.H. 93

• Court: Superior Court of New Hampshire
• Decided: September 15, 1824
• Status: Published

Opinion

Richardson, C. J.

delivered the opinion of the court.

The question to he decided in this case is, whether Joseph Tarlton was legally discharged from imprisonment, upon an execution in favour of Nathan Priest, on- the 16th October, 1822. If he were so dischaiged, this action cannot be maintained ; but if the requisitions of the statutes were !1°t substantially pursued in his discharge, the plaintiff is entitled to judgment.

The statute of June 16,1807, sec. 4, (1 A* //. Laws 158,} enacts, “ that said debtor may, at the expiration of fifteen “ days from the time of his commitment, apply to have said “ oath administered to him.” Tar lion was committed on the 16th September, 1822, and on the 1st October, in the same year, made application to have the oath administered to him. It is objected, that the fifteen days from the time of his commitment had not expired on the 1st October.— The validity of this objection depends upon the question, whether the day of commitment is to be reckoned in calculating the fifteen days ? If it be, thé application was duly made in point of time. Upon a recur, once to the authorities, we find it settled, that when a computation of time is to be made from an act done, or from the time of an act, the day, when the act is done, is to be included. Comyn-s Digest, “ Temps” a.—3 D. & E. 623, Castle et a. vs. Burdit el a.—Doug. 464, The King vs. Adderly.—5 Coke 1, Clayton’s case,—Croke James 135, Osburn vs. Rider.

This objection must,, therefore, be overruled.

The statute of February 15, 1791, (1 JV. 11. Laws 154,) enacted, “that such court, or justices applied to, shall noth “ fy, in writing, the creditor, if within this state, or the at- “ tomey, who appeared in the cause, in case the creditor “ live more than forty miles from the prison, or out of the “ state.” And: the statute of June 16, 1807, (1 JV*. H. Laws 158,) enacts, “ that no such debtor shall be admitted “ to the oath aforesaid, unless he shall have given notice to “ the creditor, or creditors, who committed him; to prison, “ or their agent or attorney, of the time and place, when “ and where such oath will be administered, fifteen days “ previous to taking said oath.”

It is objected, that the notice was insufficient in this case, because given to an attorney after the relation of attorney and client had ceased to exist, the client being dead.

But we are of opinion, that, in the statute of June 16, 1807, “ attorney” means the attorney, who appeared in the cause, as it is expressly provided in the statute of February 15, I7f)i ; ami that the relation of attorney and client, for the purpose of receiving notice, is created by the statute, and cannot be dissolve.! by any act of the attorney or client, nor by the death of the client. If, after judgment, the client takes hi; execution and discharges the attorney, still, for this purpose, lie remains attorney. As the capacity of the attorney to receive Sega! notice does not depend upon the will of the client, there seems to be no reason, why we should hold, that the capacity ceases by the death of the client.

Judgment for the defendant.