The opinion of the Court was drawn up by
Tenney J.This is an action upon a bond given to liberate from arrest on execution, the principal obligor. The de-fence relied upon is, that the condition of the bond has been fulfilled, the debtor having been legally admitted to take the poor debtor’s oath, within six months from its execution. The defendants introduced the certificate of two justices of the peace and of the quorum, in the form prescribed by law, and also introduced certain papers as records of the proceedings of the same justices, in relation to the discharge of the debtor, which documents the counsel for the defendants contended were conclusive evidence of the facts, therein stated; but the plaintiffs were permitted to introduce parol testimony for the purpose of showing, that the justices, who signed the certifi*151cate, had no jurisdiction over the matter, against, the objection of the defendants.
If the case before us presented a question touching the form of the notice to the creditors, the authority from which it. issued or the service of the same; or if objections were made to the propriety of administering the oath, on account of the insufficiency of the proof adduced, the cases cited are authority, that the certificate is conclusive. But the objection, which we are called upon to consider, relates to an earlier stage of the proceedings. It is denied that the justices who signed the certificate were a tribunal possessing any power to examine the notice, or the return of the officer who served it, to take the examination, or to administer the oath.
It must appear, that the justices of the peace and the quorum, who signed the certificate, had jurisdiction, while it has been held, that, their certificate and their record was evidence of their jurisdiction, it, has also been held, that neither was conclusive evidence; and that it was competent for the creditor to prove that they had no authority to proceed in the matter. In the case cited from 3 Pick. 404, the Court say, “ where there is no jurisdiction, the proceedings may be avoided by plea or evidence.” In Granite Bank v. Treat, 18 Maine R. 340, it is said, “ The certificate, however, would not be conclusive on this point, and it would be competent for the plaintiffs to prove that they had no jurisdiction.” Suppose in a case of this kind, the plaintiffs should offer to prove by competent evidence, if any was admissible for that purpose, that the commissions of the magistrates had expired, and had not been renewed, would it be contended, that their record would be conclusive? That the persons composing the tribunal should be justices of the peace and of the quorum, and should also be selected according to the statute, are equally material. It cannot be admitted, that persons may assume to act judicially as a tribunal of inferior jurisdiction, without in fact having the least authority, and protect their acts by a jurisdiction conclusively established by their own records.
Is it shown, that the justices had not jurisdiction at the time *152the oath was administered to the debtor ? The citation to the creditors, the certificate of the two justices, dated Nov. 29,1841, the paper signed by Nathan Fowler, justice of the peace and quorum, and another paper signed by the two justices, are in the case without objection. From these there can be no doubt, that all the proceedings were under the citation returnable at the office of Nathan Fowler, Esq. on the 22d day of November, 1841. The argument proceeds upon no other ground, and the testimony of all the witnesses confirm the fact.
The statute contemplates, that on the return of the citation and at the time fixed therein, a tribunal shall be constituted as provided in chap. 148, section 47, of the Revised Statutes. The proceedings will be invalid, unless the steps there pointed out shall be followed. At the return day of the citation in the case before us, the debtor selected a justice of the peace and of the quorum, and notified him of his wishes to proceed to the examination. No other justice was present or notified of his selection, if a selection was made. There was no tribunal at the time and place designated for the examination, clothed with the least jurisdiction over the subject.
Could the justice so selected adjourn the proceedings to a future day ? Section 24 of chapter 148, provides, that the examination shall be had before two disinterested justices of the peace and of the quorum for the county, and the justices shall have the like power.to adjourn as is provided in <§> 6, which authorizes the justices to adjourn from time to time, if they see cause; and if either of said justices shall not be present at such adjournment, the other may adjourn to another time. The power is given to one justice to adjourn only in this single instance, and that is in a case, where there has been organized a tribunal in every respect competent to act. A Court may adjourn its sittings. A justice of the peace may adjourn proceedings over which he has jurisdiction. But a tribunal, which has never had a being cannot be adjourned. One justice of the peace and of the quorum, though selected by one of the parties, has no more jurisdiction to examine the citation, and to commence proceedings under it, than the offi*153cer who made service of it, and can have no power to adjourn, unless the statute confers it upon him. The authority to adjourn for the purpose of making a selection of another justice, and giving notice to him, and procuring his attendance, is not given to the one who may be selected.
Is the defect cured by the consent of the creditor’s attorney, if he did consent to proceed ? The jurisdiction of the justices is enacted by the statute, and not by the consent of the parties. If the proceedings were in every other respect regular, excepting that one of the justices was not of the quorum, and it was expressly agreed, that he should act, could their record be upheld ? If a justice of the peace rendered a judgment in a civil action, where the debt or damage was one hundred dollars, and it appeared by the record, that he had jurisdiction over the matter by consent of the parties, is not that judgment erroneous? Cana judgment of this Court be sustained rendered in an action, it appearing to have been done by consent of parties ? If the consent of parties would give two justices of the peace and of the quorum jurisdiction over the matter on the 29th November, 1841, when the citation was made returnable on the 22d of the same November, we do not perceive the necessity of any citation, to authorize the justices to act in the premises, provided the parties consent to proceed.
There is reason to suppose, that the debtor believed that he was proceeding legally, and it may be regretted that he was misled, but the plain requirements of the statutes cannot be disregarded.
Defa,ult must stand.