Hutchinson, C. J.,
after stating the case, delivered the opinion of the Court. — The members of the Court are not exactly agreed, with regard to the principal point intended to be submitted to us by the parties; yet are agreed in the final disposition of the cause.
The issue joined by the parties seems to embrace the question, whether the creditor, Raymond, had notice of the complaint and citation, and an opportunity to appear, and object to the debtor’s being admitted to take the oath. The exceptions to the decisions on trial present two questions, that have now been argued. The defendants produced no testimony, except the certificate, to prove the issue on their part; and the court considered this conclusive,and excluded the evidence offered by the plaintiff; and seem to have excluded it on the ground that the certificate was conclusive. Whether this be conclusive, as an abstract question, and in one view here presented, I am unable to concur with my brethren in opinion. I perceive no necessity, in this case, nor any other, of losing the analogy of well settled principles, when the analogy is obvious. When a sheriff justifies an alleged trespass by showing a regular execution from a court of competent jurisdiction to issue such execution, and showing that he acted within its mandates, he makes a good justification, without producing a transcript of the record of the judgement. But, if the creditor is obliged to justify the same trespass, the execution is of no avail to him, unless accompanied with the transcript of the record of the process and judgement. To this he was a party, and for its regularity, so far as could affect the jurisdiction of the court, which rendered the judgement, he is responsible. I consider if the sheriff were sued for an escape, the certificate, lodged with him, would be sufficient of itself; for the sheriff is under no obligation [500]*500to look further than the certificate. But, if the creditor could prove, that there never was any complaint, nor citation, nor notice to the creditor, so that the commissioners could have no jurisdiction to act upon the subject, and that all this was well known to the sheriff when he received the certificate, this proof should remove from the sheriff all benefit of the certificate. If he knew the whole to be a false and fraudulent management to discharge the debtor, he ought not to connive at it, nor let the prisoner go. This suggestion is not wholly without authority. The case of Adams vs. Mattocks, very shortly reported in Brayton, was decided when Messrs. Alois, Skinner and Fisk composed the court, if I mistake not. That was an action for an escape. The defence was, that the prisoner was regularly admitted to the poor debtor’s oath before the escape. The facts were, that an idea was generally prevalent, that a prisoner might be admitted to the oath, without notice to the creditor, unless such creditor lived in the county, or had an agent there. The prisoner was committed, and forthwith made his complaint, and was admitted to the oath without notice, the creditor living in another county, and having appointed no agentin the county where the prisoner resided. The certificate showed that no notice had been given. The Court decided, that these circumstances afforded no excuse for not notifying the creditor ; and held the sheriff liable for the escape. Here the sheriff was informed, by the certificate, that there was no notice. But, if the certificate had shown notice in the usual form, and the sheriff knew that the prisoner was committed and discharged on the same day, when the law required twenty days’ notice, such a false certificate, known to him to be false, ought not to vary his liability. In the case before us, the sheriff is not sued. This suit is upon the bond, which is in form a security to the sheriff against any escape j but by law it is, in all its substance, a security to the creditor, that the debtor shall remain within the prison limits till the debt is paid, or till he, in some way, is lawfully discharged. The discharge relied upon, in defence of the suit upon this bond, is one procured by the debtor from the commissioners of jail delivery. He produces their certificate, in the statute form, that he had made application ; that the creditor had been duly notified, and that the prisoner ought to be discharged. Now the commissioners had no jurisdiction to act upon this subject, until a written application to them by the debtor, followed by their citation, and service made upon the creditor by a copy, as in cases of writs of summons. The argument, however, is, that [501]*501this certificate is conclusive proof of all these prior proceedings. , * , The statute has attached no such consequence to this certificate, It must be given by construction, if in any way. Why not attach such consequence to the recital of a judgement in an execution ? It is so done in case of the officer, as before suggested ; but never as regards the creditor. He must produce the transcript of the record of the judgement; and' that cannot be read, unless accompanied with a copy of the writ and service, which would show the parties to the judgement regularly before the court.
Against this is urged the want of records of the doings of the said commissioners of jail delivery. No law requires them to make records. Suppose we treat this certificate as the record of their judgement, or as a certified transcript of that record ; what hinders the production of copies ol the complaint, citation and service ? That these, or the originals, are not to be had, in matters of recent date, is not a supposable case. There is a further answer to this suggestion. There never was any law in this state, till the year 1S21, Requiring a justice of the peace to keep, or make, any record of his proceedings; none, that said any thing about his preserving his files. Yet, from the dawn of our jurisprudence, no judgement of a justice of the peace could be proved before any of our judiciary tribunals, without a regular copy of the judgement, and of the foundation process. And, during all that time, as now, the sheriff could justify by his execution only. That he was bound to obey, and by that he must be justified. If there be actually any difficulty of proof for want of records, in this case, I would apply a different and safe remedy ; safe at least for the debtor. I would treat this certificate as only primafacie evidence of notice ; and let the creditor bear the burden of resorting to the files and records of the jail commissioners, and proving the real facts about notice. The statute' expressly requires six days’ notice to the creditor. The necessary inference of law, and one supported by judicial decisions in analogous cases, is, that proceedings without any notice are wholly void. If a case should happen, that a debtor in prison, by fraud, accident or mistake, obtains a certificate, when the creditor has had no notice ; say there is a service made upon some other person of the same name as the creditor; or there is no pretence of any service, and no return whatever upon the citation, and this overlooked by some carelessness of the jail commissioners; in any such caso, should the debtor leave his certificate with his bail, and be off', a decision, that this certificate should legalize proceedings, so [502]*502ilIeSal au<^ vo'^) beyond the reach of any remedy for the creditor, is one to which I cannot subscribe. I would at least let him prove them thus void, and restore his remedy.
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Hutchinson, C. J.,
after stating the case, delivered the opinion of the Court. — The members of the Court are not exactly agreed, with regard to the principal point intended to be submitted to us by the parties; yet are agreed in the final disposition of the cause.
The issue joined by the parties seems to embrace the question, whether the creditor, Raymond, had notice of the complaint and citation, and an opportunity to appear, and object to the debtor’s being admitted to take the oath. The exceptions to the decisions on trial present two questions, that have now been argued. The defendants produced no testimony, except the certificate, to prove the issue on their part; and the court considered this conclusive,and excluded the evidence offered by the plaintiff; and seem to have excluded it on the ground that the certificate was conclusive. Whether this be conclusive, as an abstract question, and in one view here presented, I am unable to concur with my brethren in opinion. I perceive no necessity, in this case, nor any other, of losing the analogy of well settled principles, when the analogy is obvious. When a sheriff justifies an alleged trespass by showing a regular execution from a court of competent jurisdiction to issue such execution, and showing that he acted within its mandates, he makes a good justification, without producing a transcript of the record of the judgement. But, if the creditor is obliged to justify the same trespass, the execution is of no avail to him, unless accompanied with the transcript of the record of the process and judgement. To this he was a party, and for its regularity, so far as could affect the jurisdiction of the court, which rendered the judgement, he is responsible. I consider if the sheriff were sued for an escape, the certificate, lodged with him, would be sufficient of itself; for the sheriff is under no obligation [500]*500to look further than the certificate. But, if the creditor could prove, that there never was any complaint, nor citation, nor notice to the creditor, so that the commissioners could have no jurisdiction to act upon the subject, and that all this was well known to the sheriff when he received the certificate, this proof should remove from the sheriff all benefit of the certificate. If he knew the whole to be a false and fraudulent management to discharge the debtor, he ought not to connive at it, nor let the prisoner go. This suggestion is not wholly without authority. The case of Adams vs. Mattocks, very shortly reported in Brayton, was decided when Messrs. Alois, Skinner and Fisk composed the court, if I mistake not. That was an action for an escape. The defence was, that the prisoner was regularly admitted to the poor debtor’s oath before the escape. The facts were, that an idea was generally prevalent, that a prisoner might be admitted to the oath, without notice to the creditor, unless such creditor lived in the county, or had an agent there. The prisoner was committed, and forthwith made his complaint, and was admitted to the oath without notice, the creditor living in another county, and having appointed no agentin the county where the prisoner resided. The certificate showed that no notice had been given. The Court decided, that these circumstances afforded no excuse for not notifying the creditor ; and held the sheriff liable for the escape. Here the sheriff was informed, by the certificate, that there was no notice. But, if the certificate had shown notice in the usual form, and the sheriff knew that the prisoner was committed and discharged on the same day, when the law required twenty days’ notice, such a false certificate, known to him to be false, ought not to vary his liability. In the case before us, the sheriff is not sued. This suit is upon the bond, which is in form a security to the sheriff against any escape j but by law it is, in all its substance, a security to the creditor, that the debtor shall remain within the prison limits till the debt is paid, or till he, in some way, is lawfully discharged. The discharge relied upon, in defence of the suit upon this bond, is one procured by the debtor from the commissioners of jail delivery. He produces their certificate, in the statute form, that he had made application ; that the creditor had been duly notified, and that the prisoner ought to be discharged. Now the commissioners had no jurisdiction to act upon this subject, until a written application to them by the debtor, followed by their citation, and service made upon the creditor by a copy, as in cases of writs of summons. The argument, however, is, that [501]*501this certificate is conclusive proof of all these prior proceedings. , * , The statute has attached no such consequence to this certificate, It must be given by construction, if in any way. Why not attach such consequence to the recital of a judgement in an execution ? It is so done in case of the officer, as before suggested ; but never as regards the creditor. He must produce the transcript of the record of the judgement; and' that cannot be read, unless accompanied with a copy of the writ and service, which would show the parties to the judgement regularly before the court.
Against this is urged the want of records of the doings of the said commissioners of jail delivery. No law requires them to make records. Suppose we treat this certificate as the record of their judgement, or as a certified transcript of that record ; what hinders the production of copies ol the complaint, citation and service ? That these, or the originals, are not to be had, in matters of recent date, is not a supposable case. There is a further answer to this suggestion. There never was any law in this state, till the year 1S21, Requiring a justice of the peace to keep, or make, any record of his proceedings; none, that said any thing about his preserving his files. Yet, from the dawn of our jurisprudence, no judgement of a justice of the peace could be proved before any of our judiciary tribunals, without a regular copy of the judgement, and of the foundation process. And, during all that time, as now, the sheriff could justify by his execution only. That he was bound to obey, and by that he must be justified. If there be actually any difficulty of proof for want of records, in this case, I would apply a different and safe remedy ; safe at least for the debtor. I would treat this certificate as only primafacie evidence of notice ; and let the creditor bear the burden of resorting to the files and records of the jail commissioners, and proving the real facts about notice. The statute' expressly requires six days’ notice to the creditor. The necessary inference of law, and one supported by judicial decisions in analogous cases, is, that proceedings without any notice are wholly void. If a case should happen, that a debtor in prison, by fraud, accident or mistake, obtains a certificate, when the creditor has had no notice ; say there is a service made upon some other person of the same name as the creditor; or there is no pretence of any service, and no return whatever upon the citation, and this overlooked by some carelessness of the jail commissioners; in any such caso, should the debtor leave his certificate with his bail, and be off', a decision, that this certificate should legalize proceedings, so [502]*502ilIeSal au<^ vo'^) beyond the reach of any remedy for the creditor, is one to which I cannot subscribe. I would at least let him prove them thus void, and restore his remedy.
While the hardship of the defendants is urged, they being bail only, I need only observe, that the bail has undertaken for the principal, and become jointly and severally holden with him ; and, if the principal debtor has committed a breach oí the bond, that is the very and only thing, that should, and does, fasten the debt upon the sureties. The debtor can do nothing, without the concurrence of the creditor, that would discharge his bail from a suit upon the prison bond, but what would discharge himself also.
The defendants’ counsel have cited a case from Crunch, in which it was decided, that a discharge of this character is a bar to any action upon the prison bond, though such discharge was obtained fraudulently. It must be noticed, that the proceedings, and notice, and certificate of discharge, in that case, were all perfectly regular. The fraudulent procuring was the debtor’s false swearing on the hearing of the merits, and taking the insolvent oath. He thus became liberated from his imprisonment. The statute in that case, like our statute, enacts, that the debtor thus swearing falsely shall take no benefit by the proceeding. The Court decided, that no action lay upon the bond, while that discharge remained in force, but the debtor was liable to be again imprisoned for the same debt. That decision can be supported upon the well settled principle, that a judgement is binding upon those who are parties to it, while it remains in force. Third persons may attack collaterally, in certain cases ; but a man who would avoid the force of a judgement to which he is party, must institute process to reverse it, 'or set it aside and obtain a new trial. If we are told, that there is no method thus to set aside the decision of jail commissioners ; in such a case, of a discharge procured by perjury, a court of chancery would readily enjoin the debtor from using such discharge; and, if the bail had in no way connived at the iniquity, the discharge might be left in force for his use. We m.ust not lose sight of the distinction between a wrong decision of the commissioners, by reason of fraud or ignorance, on the merits of a case, where the parties are regularly before them, and a decision that may be just upon the merits, in a case not so brought before them, as to give them jurisdiction. In the former case, it is valid till set aside. In the latter, all is void; and the party injured ought at least to be permitted to show this irregularity and avoid the force of the decision. Thus should it [503]*503be, so far as relates to the parties, the creditor and debtor; not 1 . . forgetting the exception, already mentioned, in favor of a sheriff, who discharges his prisoner, on receiving a certificate, apparently regular, and which he has reason to suppose was regularly obtained. In such case the remedy of the creditor would not be upon the sheriff; but upon his debtor, by action of debt, or scire facias, on his judgement.
My brethren seem to consider my views opposed to the current of decisions in this state. All the decisions were reviewed in the case cited by the plaintiff’s counsel, decided in this county two or three years since. I allude to the case of Hubbell vs. Dimick et al. That opinion was announced, in all its substance, if not its form, as reported, and now before us; and I considered that the members of the Court then present were perfectly agreed in that opinion. I had no intimation to the contrary. In that case, the defence was overruled ; the board of commissioners being composed of persons, who might have jurisdiction, if the facts would warrant; but, as the facts were in that case, they had no jurisdiction.
As the counsel have labored this question, it was deemed proper to express our views upon it. Yet I view it rather as an abstract question, than as one upon which the action must turn. The plaintiff’s plea sets forth a regular complaint, and citation ; and a service of the same by the sheriff of the county, describing that service with great particularity, as has already been noticed. The plaintiff’s execution described him as of Manchester. The sheriff left his copy at the then known residence of the plaintiffin said Manchester, in the hands of the plaintiff’s son, a person of sufficient discretion, then resident therein, and the known clerk and agent in the business of the plaintiff. This return shows a service in all respects regular and perfect, except its not mentioning the absence of the plaintiff, as a reason for leaving the copy with the son. Whatever might have been the result of a plea in abatement, urging this defect, it surely is not a defect, that can render the proceedings void. To avail at all, it must be urged by a plea in abatement. This plea, after stating the proceedings thus far, adds the decision and certificates of the commissioners. All this presents a legal discharge, a full defence to this suit upon the bond. How, then, is this met by the plaintiff? He does not traverse any one of these facts. His replication affects none of these facts, except that which supposes the residence of the plaintiff to be in Manchester. The replication attempts to show, [504]*504Manchester was not the place of the plaintiffs residence in 11 such a sense, that the copy should have been leit there. Jbov though the family of the plaintiff remained at Manchester, he was estakl¡shed iQ business at Bennington in the same county, as cashier of the bank there,and only visited his family occasionally, &c. The parties, at length, join issue upon the question of residence and notice. The defendants read their certificate, and the plaintiff offers to do away its force, by proving the fact of his being established at Bennington as above mentioned. If the certificate were not conclusive for the defendants, this testimony is of no force to do it away. The plaintiff and his family living at Manchester, and suits brought by him describing himself as of Manchester, his going to Bennington himself, as he alleges, and leaving his family at his former residence in Manchester, and leaving his son there also, as his clerk and agent, as alleged in the plea, and not denied, is no such change of residence as prevented the leaving the copy with the son at Manchester. A man’s residence is where his family is, unless he has totally abandoned them, or they him; neither of which is pretended in the present case. If the plaintiff had no notice in fact, he must blame his son and agent, who received the copy from the sheriff, and whose duty it was to deliver the same to the plaintiff. We are all agreed, that this testimony was correctly excluded. I am disposed to observe, that the pleadings in this cause are protracted, by declaring upon the evidence. The question should have been presented by a direct allegation, that the plaintiff’s residence was at Bennington. Then the question for decision would have been, whether the facts proved, or offered to be proved, supported the issue.
The judgement of the county court is affirmed.
Williams, J.
We all agree in this case in affirming the judgement of the county court, but our views are not the same as to the effect of the certificate. A majority of the judges present consider the certificate given by the commissioners of jail delivery as conclusive evidence of the facts set forth therein, in that the creditor was duly notified, as well as that the debtor was admitted to the oath.
These commissioners arc not constituted a court of record, and they are not required to keep any record of their proceedings. On application to them they are to issue a citation to the creditor, and when they administer the oath they must give two certificates, one to the imprisoned debtor, and the other to the keeper [505]*505of the jail, and it is their certificates which entitle the debtor to ° m . his release from jail. When the one directed to the keeper of the jail is delivered to him, if it is in regular form and from a board having jurisdiction, he is bound to let the debtor depart out of his custody ; or if the debtor is within the limits, he may depart, and neither his bail nor the sheriff have any further control over him. And it is difficult to conceive how a departure from the prison or the liberties, under the licence or authority of a tribunal constituted for the express purpose of determining upon the propriety of giving such licence, and regular upon the face of it, can subject the person departing, his bail,or the sheriff, to any liabilities in consequence of such licence being improperly granted.
But if we consider the board of commissioners as a court, the reasons for considering their certificate as conclusive of the facts set forth therein, are still more forcible. It is their duty to give notice to the creditor, and they must decide upon the sufficiency and regularity of the notice. It is a principle which applies to all judicial tribunals, whether superior or inferior, that their judge-ments,in cases within their jurisdictions,are conclusive, and cannot be impeached collaterally. As it is the province and duty of these commissioners to determine whether the creditor has been notified, if they adjudge that he has been, and grant their certificate accordingly, their judgement in this particular cannot be questioned.
If they undertake to decide that notice in a particular case is not necessary, or if they decide that notice to a person other than the creditor is sufficient, and this appears upon their certificate, the certificate itself may be void, and no protection to the debtor: but if they directly certify that the creditor has been notified, I know of no way in which their judgement can be questioned.
The county court have to decide frequently whether notice to a defendant who was out of the state at the time of service is proved. This Court have to decide, in cases of divorce, whether the residence of the party petitioning is proved. In neither case can their decision be questioned elsewhere. The same reason which forbids that their judgements in this particular should be reexamined before another tribunal, applies to the determinations of the commissioners of jail delivery.
The danger of having this subject open to discussion has very great weight with me. The commissioners are called on to adjudge whether a citation is regularly served ; they determine that it is, and proceed to administer the oath to, and discharge the [506]*506debtor. It would be manifestly wrong to subject the debtor or his bail to a large amount because another tribunal thought their decision erroneous.
Uut this question has been fully settled. The decisions in this state have been more uniform upon this subject than upon any other. The cases of Childs vs. Morse and Osgood, 2 Tyler, 221; Brush vs. Robinson et al. do. 358; Adams vs. Mattocks, Bray. 199; Thornton vs. Robinson and Howard, do. 199; Smith et al. vs. Quinton, do. 200, are direct authorities upon this point. Judge Paddock, in giving the opinion of the Court in a case decided last winter, of Haight vs. Richards et al.
I cannot consider the case of [Hubbell vs. Dimick, as in any way overruling these authorities. That case does not determine of what the certificates are evidence ; but it appears to me that both the want of jurisdiction and' notice appeared on the face of the certificates. All that the Court was required to decide was, that if a judge of the county court is called on to act as a commissioner of jail delivery, and grants a certificate, the reason of his being so called should appear in the plea setting forth the proceedings of the commissioners. The general jurisdiction of all cases of that kind is given to the commissioners; and if a judge takes the place of a commissioner for the reasons pointed out in the statute, the reason of his so taking the place should be set forth in a plea, to shew that he has jurisdiction. The Court were also, by that case, required to decide that service on a person other than the creditor named in the execution was notin conformity to the statute. The correctness of these decisions cannot be questioned. They were warranted by the case of Adams vs. Mattocks, before mentioned, and are recognised to the full extent of what the Court were required to decide. And no case is an authority any farther. I apprehend the decision in the case of Hubbell vs. Dimick, does not conflict with the authorities before cited, but is rather in accordance with them, and leaves the decision unshaken, that the certificates given by the commissioners of jail delivery, if in regular form, are conclusive evidence of the facts therein set forth, [507]*507and cannot be questioned collaterally in any other action.
Bennet & Aiken, for plaintiff.
Sargent, for defendants.
Judges Royce and Thompson concur in this opinion.
Thompson, J.,
said he yielded to the weight of authorities, in favor of the opinion expressed by Williams, J., but upon principle, aside from the authorities, he agreed with the Chief Justice.
Ante, page 77.