The defendant, George N. Briggs, was committed to the county jail of the county of Providence, on execution in favor of the plaintiffs, and on the 20th day of June, 1851, gave his bond in the sum of $425, with Nathan M. Briggs and Warren G. Slack, as sureties, to keep within the limits of the said prison, until he should *Page 140 be lawfully discharged, without committing any manner of escape,c. On the same day the defendant issued a citation under the act for "the relief of poor persons imprisoned for debt," returnable on the 28th of June following. On that day, the defendant Briggs and the plaintiffs, by their counsel, appeared before Justices Hart and Porter, who took jurisdiction of the citation and administered the preliminary oath and put the preliminary questions, and, thereupon, the counsel for the creditors moved for an adjournment, and the further hearing was continued until June 30th, at 3 o'clock P.M. At the adjournment, Mr. Hart being out of the city, Mr. Anthony, another Justice of the Peace, was called in to sit with Mr. Porter, and without administering the oath a second time, asked the preliminary questions, and after a full examination, refused the discharge. Neither party made any objection to the examination. On the 9th of July, 1851, the defendant Briggs issued a second citation, but without annexing thereto or reciting therein any change of circumstances after the taking out of the first citation as required by statute, (Dig. of 1844, p. 171, sec. 18,) when a previous citation has been withdrawn or a discharge refused. The citation was returned on the 17th day of July, and after several adjournments, the defendant was admitted to take the oath on the 25th of July following. At this hearing, the creditor was present by his counsel, and there was a full examination and hearing on both sides. The counsel for the creditors objected to the jurisdiction of the Justices and the objection was overruled.
The jury trial in this case was waived under the statute and the cause submitted to the court upon the pleadings and evidence. *Page 141 We think Justices Porter and Hart commenced the examination of the debtor, in the sense of the statute. They administered the preliminary oath, and put the preliminary questions; the attorney of the creditors being present. The further examination was postponed to a future day on motion of the attorney of the creditors. At the time to which the examination was adjourned, Justice Hart was absent and Justice Anthony was called in to act with Justice Porter. They then proceeded to examine the debtor under the oath administered to him by Justices Porter and Hart; and the attorney of the creditors being present, also examined the debtor, and there was a full hearing. Justices Porter and Anthony refused a discharge to the debtor.
Upon these facts, we are of the opinion that the examination by Justices Porter and Anthony was a continuation of the examination before Justices Porter and Hart, and that Justices Porter and Anthony had no jurisdiction over the proceedings. The meaning of the section of the statute, which requires the Justices who commence the examination to sign the certificate, is that such Justices, and none others, shall try the case.
The statute was intended to prevent the practice, on the part of the debtor, of getting the examination postponed to another and future day, after having found the Justices first selected unfavorable, and selecting other *Page 144 Justices to sit at the adjournment, whom he might hope to find more favorable to his application.
And this defect of jurisdiction cannot be cured by consent of both creditor and debtor. Such consent cannot confer jurisdiction when none existed before. The provisions of both statutes are to be construed together, and thus construed, they confer no jurisdiction on any Justice to sit in the examination of a debtor, unless he first commenced it. The creditor and debtor might as well attempt to confer jurisdiction on Justices out of the county. The section of the statute referred to, is not a restriction which the parties might waive, but is an indispensable element in the jurisdiction, without which it cannot exist.
The next question is, has the debtor withdrawn his citation in the sense of the statute?
We think the conduct of the debtor amounts to a withdrawal of his citation in the sense of the statute. He should have moved for postponment until Mr. Hart returned; instead of this, he submitted to an examination by the Justices present, which he must be deemed to know was no examination in law. If he had not appeared at the adjournment, it would undoubtedly have been a withdrawal. By submitting to an examination, instead of asking for an adjournment, he elected to give the proceeding such a direction, as would necessarily render it void. We do not mean to say this was done in bad faith by the debtor, but he must be deemed to know the law.
If at the time of the adjournment, Justices Porter and Anthony had refused the debtor a postponement, his refusal to submit to an examination before them, would not *Page 145 be considered a withdrawal of his citation. The debtor may be considered in some degree as having the control of the citation. It is issued at his instance, he selects the justices who are to make the examination; he is the party who is to appear at the time and place appointed, and, if without fault on his part, the proceeding becomes nugatory, he ought not to be considered as withdrawing his citation.
The statute intended to protect the creditor against repeated citations, withdrawn when the creditor appears, and then renewed. After the debtor has taken out this process, the intent of the statute was that he should take all reasonable means to have it brought to a final trial, and, if he fails to do this, he must be deemed to have abandoned it. In the present case, the examination could not legally proceed, in the absence of Justice Hart; instead of having the examination deferred until that Justice should return, he elects to go on and be examined by a court who had no authority to act.
Judgment for the plaintiffs. *Page 146