Plea, in substance, upon oyer craved and given, that the condition of said bond was, that if the said Robbins, then a prisoner in jail in Providence county at the suit of the plaintiff, should thenceforth continue and be a true prisoner in the custody of Francis B. Lee, keeper of said jail, and of his deputy, officers and servants, or some one of them, within the limits of said jail, until lawfully discharged therefrom, without committing any manner of escape or escapes during the term of his restraint, the bond was to be void; and that Robbins did remain a true prisoner, without committing any escape until the 27th day of October, 1851, when he was discharged from jail by said Francis B. Lee, keeper of said jail, in pursuance of a certificate under the hands and seals of two justices of the peace in and for the city of Providence, (set forth in the plea,) showing that said Robbins had been admitted to take the poor debtor's oath.
Replication, in substance, that before said pretended discharge, and whilst Robbins was imprisoned upon execution for debt at the suit of the plaintiff, to wit, on the 26th day of September, 1851, he made application to one of the justices who granted said pretended discharge, for a citation to the plaintiff to show cause why said Robbins should not be admitted to the benefit of the poor debtor's act; which citation being duly served and returned, at a time to which the hearing thereon was duly adjourned, being the 10th day of October, 1851, said Robbins appeared before the justice of the peace who issued the citation and another justice of the peace for the city of Providence, who had full jurisdiction over his application, and who, after full hearing of the same, being divided in opinion, said Robbins was not admitted to the oath, but his application was dismissed; and the plaintiff averred, that the cause of this dismissal *Page 495 was, that said Robbins had been in the habit of, and was addicted to gambling, and no other cause; that afterwards, on the 11th day of October, 1851, the said Robbins, being still imprisoned upon the same commitment, applied to the justice of the peace who granted to him his pretended discharge, for a second citation to the plaintiff upon a similar application, which was issued by the justice, bearing the last named date, and made returnable on the 17th day of October, 1851, and served upon the plaintiff on the day it bore date, and that the only recital in said second citation of any pretended change of circumstances since the taking out and dismissal of the former citation was in the following words: "that since the taking out of any former citation on said execution, he, (to wit, the said Robbins,) has made an assignment of all his property, of whatever nature, except what is exempt from attachment by law, to Horace A. Manchester, for the benefit of the said Angell and one George C. Elliott, and hath also been compelled to provide for his own subsistence, which he is unable to do;" that shortly before said pretended assignment to said Manchester, said Robbins had executed and delivered a general assignment of all his property, or of all not exempt from attachment by law, in trust for certain creditors, and no property, or but a merely nominal sum of money, of some three or four dollars, passed under, or was conveyed by said pretended assignment, and that said Manchester never assumed upon himself or acted under the trusts of said pretended assignment, any further than formally to take the deed and receive said nominal sum of three or four dollars; and the plaintiff averred, that the facts so recited in said second citation, if true, did not constitute any such change in the circumstances of said Robbins, since the taking out of his former citation, as is contemplated by the poor debtor's act; that said second citation was, after being served upon the plaintiff as aforesaid, returned, and the hearing thereon adjourned by said justice, but no further proceedings were had thereon; that afterwards, on the 18th day of October, 1851, the said Robbins, being still imprisoned upon the same commitment at the suit of the plaintiff, again applied to the same justice of the peace as last before, for a third citation to the plaintiff of like character, *Page 496 which was issued by the justice and served upon the plaintiff; and that the only recital in said third citation of any pretended change of circumstances since the taking out of the former citation was in the following words, to wit: "And whereas said Robbins has made proof to me, that since the taking out of any former citation on said execution his circumstances have undergone a change, in that he has made an assignment to Horace A. Manchester of all his property, not exempt from attachment by law, for the benefit of said Daniel Angell and one George C. Elliott;" that upon the return of said citation, on the 27th day of October, 1851, the time named in said citation for hearing of the parties thereon, said Robbins appeared before said justice of the peace and another, who granted to him the pretended discharge set forth in the plea; that the assignment by Robbins, mentioned in said citation, if any was ade, was the same assignment recited in said second citation made after a general assignment by said Robbins of all his property as before stated, and constituted no such change of circumstances as contemplated by law, and that said discharge was unauthorized and void, and so that said Robbins escaped from said jail by availing himself thereof to leave said jail, not being legally discharged therefrom.
To this replication the defendants demurred generally, and the plaintiff joined in demurrer.
The action was originally brought at the court of common pleas for the county of Providence, and the demurrer having been sustained below, was now brought to this court by appeal. The provisions of the act entitled "an act for the relief of poor persons imprisoned for debt," empowers any two justices of the peace to hear applications of a debtor to be admitted to the benefit of that act, and to adjudge and determine whether he is entitled to be admitted to take the oath prescribed in the act, and to admit him, if in their judgment he is so entitled. This they are empowered to do upon giving to the creditor seven days' notice of the time and place appointed for the hearing. This is not questioned; but the point here made is, whether the magistrates had jurisdiction of the person of the creditor, so as to enable them to hear the subject-matter of the application. It is admitted by the pleadings that the notice given was sufficient in point of time, — that it was more than seven days before the time appointed for the hearing, — that it was proper in point of form, containing the necessary statement of facts.
If the justice who issued the summons had jurisdiction of the process, and the summons be proper in point of form, and he give the seven days' notice which the act requires, it must be conceded, that the creditor was within the jurisdiction of the two justices, for all the purposes of a hearing upon the merit of the debtor's application.
The plaintiff insists, however, that the justice had no such jurisdiction, and that he was prohibited from issuing a citation in a case like this. *Page 502
The plaintiff relies upon the 18th section of the act, (Digest of 1844, p. 171,) which provides as follows: —
"If a debtor take out a citation to his committing creditor, and has the same served, and subsequently withdraws the same, or if upon trial he shall not be admitted to take the oath prescribed in the eleventh section of this act, he shall not be entitled to another citation to the same creditor, unless on proof of some change of circumstances, after the taking out of the first citation; which change of circumstances shall be annexed to or recited in the second citation, and form part thereof."
By the provisions of this section, the debtor is prohibited from having, and the justice from issuing, a second citation to the same creditor, except upon certain conditions, viz: proof of a change of circumstances of the debtor since the former citation; and, consequently, as jurisdiction could be had only by means of the citation, and the citation is prohibited, no jurisdiction could be exercised by the magistrate without a compliance with the condition enforced. But if that condition be complied with, then may the citation legally issue, and upon due service thereof jurisdiction is obtained, not only over the subject-matter of the application, but over the person of the creditor.
The condition is, that the debtor shall submit to the justice proof of some change of circumstances since the taking out of the first citation. If he produce such proof, the magistrate is then authorized to summon the creditor, provided the magistrate recite in the citation the change of circumstances as to which the satisfactory proof is offered. The production of proof, — of evidence of any fact, implies an exercise of judgment thereon by the person to whom it was addressed. It is presented to him for that purpose, and his duty is to weigh and consider it. He is made the judge of it, and the sole judge. If, in his opinion, upon the proof, the change of circumstances has occurred, his duty is to issue the citation, and it becomes the right of the debtor to demand it. A power to hear and determine is jurisdiction. United States v. Arredondo others, 6 Pet. 691; Hayward, petitioner, 10 Pick. 358; Miller v.Brinkerhoff, 4 Denio, 118.
Prior to the introduction of this section of the act, the debtor was at liberty to make as many successive applications as he *Page 503 chose; and being denied the benefit of the act by one set of magistrates upon trial, might still make his application to others, until he could obtain a more favorable result. This provision was intended as a check upon this practice of the debtor to harass his creditor by repeated applications, when the magistrates, upon a hearing and trial, had decided his case against him. This was to be done by vesting in a single justice, upon a second application, a power to grant or refuse a second summons to the creditor, upon proof to be submitted to him by the debtor; leaving it for him to determine if the condition be complied with, and whether it be a proper case in which to bring the creditor again within the jurisdiction of the two magistrates. Necessarily, he must be the sole judge of this; and as he determines, so are the parties bound. It can be submitted to no one else.
It is objected, that if the intent of the act was that the single justice should hear and determine what constituted a change of circumstances, it cannot be intended that the power should be exercised ex parte; that, upon a matter so important to the creditor, he has a right to be heard; and that if this hearing is final, he is deprived of that right.
If it were true that every party had a right to know and be informed of every preliminary step taken in the cause by the other party, this objection would have some force. But the right to be fully heard has never been held to extend beyond those questions which affect the merits of the cause. Clearly this preliminary hearing was designed to be ex parte, as the finding of a grand jury is; this provision of the act being designed as a relief to the creditor from being harassed without reasonable cause. It cannot operate to his relief, unless it be ex parte; and if the creditor is to have the right to be heard in reply to this preliminary proof, he may be harassed just as often as the debtor chooses to say that there is a change of circumstances. To prevent this, the statute says he shall first satisfy one of the justices, by proof, that a change of circumstances has occurred, just as in a case of indictment, twelve men must be first satisfied of the justice of the charge preferred; and upon this condition the trial may be had, and upon no *Page 504 other. The indictment, in the one case, does not conclude the prisoner upon the question of his guilt, but he is concluded only upon the question of jurisdiction as to whether process properly issued. So in this case, the creditor is not concluded further than that the summons properly issued, so as to bind him to answer the application of the debtor. No right of his is impaired
The justice may err in judgment upon the evidence, and may fail to relieve the creditor from a hearing when, it may be, he ought not be called upon to defend, and so, fail to come up to the spirit of the act; but his error of judgment is a matter which cannot be reached in any collateral proceeding.
The plaintiff, in argument, insists that the change of circumstances necessary to be proved to the justice contemplated by the act, is a change affecting the discharge of the debtor;i.e. such as ought to influence the magistrates, on a hearing of the merits of the case, in granting the application. He does not contend that the making of the assignment, as set forth in the citation, which the justice certifies was proved to him, may not be a change of circumstances in the debtor affecting his discharge. This position he expressly declines to take; but contends, that under the facts disclosed in the replication, viz: that nothing passed by the assignment, or a mere nominal amount, and that the assignee did not assume to execute the trust further than to receive such nominal sum, there could not be such a change as could affect the merit of the debtor's application.
Are these facts, as set forth in the replication, as to the assignment, or as to what passed by it, and as to the conduct of the assignee, well pleaded, so that we can take notice of them? The justice had full jurisdiction to judge whether the change of circumstances had occurred. Were the facts, now stated, before him, when he came to his conclusion? If they were, he has passed his judgment upon them. That judgment cannot be reviewed collaterally; and we cannot reexamine the evidence, and reverse his judgment. This can only be done by some direct proceeding for the purpose of reversal. Stanton v. Schell, 3 Sandf. 323;Horton v. Auchmuty, 7 Wend. 200; Haywood, *Page 505 petitioner, 10 Pick. 358; Miller v. Brinkerhoff, 4 Denio, 118; Rex v. Davis, 6 T.R. 178; Rex v. Thompson, 2 T.R. 18.
If they were not before the justice, then, in effect, the plaintiff calls upon us, not merely to review that decision, but to do so in the light of other proof than that which was before him. This is equally against the rules of law. We cannot review, either upon the same proof, or upon additional evidence, the determination of a competent tribunal, upon a subject within its jurisdiction. The facts, therefore, which the plaintiff would have the court here consider, are such as are not properly pleaded; and we are not at liberty to take notice of them.
It is admitted by the replication that proof was offered to the justice, — that he determined upon that proof that there had been a change of circumstances, viz: that the debtor had made the assignment stated by him, — and that the citation thereupon issued, and was duly served. The single justice having jurisdiction over this process, and having jurisdiction to bear the evidence and determine whether a change of circumstances had occurred, and having adjudged that it had, that determination is conclusive and final, not only in that proceeding, but, as to these parties, in every other proceeding.
Nevertheless, it is open upon the hearing of the debtor's application upon the merits before the two magistrates, whether, under all the circumstances which may be shown upon such hearing, there has been such material change of the debtor's circumstances, as would entitle him to a discharge under the act. The justice is required in the citation to the creditor to recite the change, as to which proof was offered, that the creditor may have notice, and be prepared to meet it by proof, at the hearing upon the merits.
We have not thus far taken notice of the second application of the debtor, and the citation thereon, as alleged in the replication; and have treated the subject as if the second citation had not issued, and as if the change had taken place between the first and the third citation upon which the debtor was discharged. Upon the proper construction of the 18th section of the poor debtor's act, we think that the second citation did not affect the rights of the parties in any respect. This section *Page 506 prohibits the debtor from having a second citation only in cases, where, having had his citation served upon the creditor, he subsequently withdraws the same, or where, upon trial, he shall not be admitted to take the oath. In this case, as stated in the replication, there was no trial, and therefore that alternative did not occur. Neither was it withdrawn in any proper sense, within the meaning of this section. The notice in this case was insufficient in point of time. Upon it the creditor was not bound to appear, and he did not appear to waive any right of his. The justice felt that he had no authority to proceed to a hearing; the citation being a ministerial act necessary to give jurisdiction to the magistrates and not conforming to the law. A withdrawal implies something more than a mere passive submission to the act of the justice. It implies some act of the debtor, taking the subject-matter from the consideration of the magistrates. The replication discloses no act of the debtor to avoid a trial of the merits of his application. It simply states, that nothing further was done after the service of the citation. It does, however, disclose a sufficient reason why the justice, of his own motion, should decline to proceed, without any action of the debtor either way, and even against his wish to proceed to a hearing. If the creditor had appeared and taken the objection that the notice was insufficient, and the justices had thereupon dismissed the application, the debtor would stand in the same position. His citation would neither be withdrawn nor would he be denied the oath upon trial. It would be simply determined, by the justices, that he had no right now to be heard, because the parties were not properly before them.
Demurrer sustained. *Page 507