Perley v. Jewell

The opinion of the Court was drawn up by

TeNNEt J.

The question here presented is, whether the justices of the peace and of the quorum, who administered to the principal in the bond in suit, the poor debtor’s oath, had jurisdiction of the matter. If their proceedings were at the time appointed in the citation, the answer must be in the affirmative, otherwise in the negative. It does not appear that the delay which happened in this case was in any degree prejudicial to the interests of the creditor. She declined to make the selection of a justice of the peace and quorum; hence it is to be inferred, that she could have proceeded to examine the debtor, if she had wished to do so. This circumstance, however, could not give jurisdiction to the magistrates, but it is a reason for the application of the principle, that to save a forfeiture, a liberal construction should be given.. Windsor v. China, 4 Greenl. 298.

It is contended by the plaintiff’s counsel, that the next hour after that named in the citation having arrived,i without the organization of the proper tribunal, the justices had no jurisdiction whatever. Statutes must be so interpreted, that they may accomplish, and not defeat their obvious purposes. Where certain things are required to be done on a .certain day, and such is their character, that more or less time is necessary for their completion, and the whole cannot be done on that day, it will not be contended, that if done within a reasonable time afterwards, the demands of the law have not been fulfilled.

By c. 148, § 46, Rev. St. it is the privilege of the debtor and the creditor each to select a magistrate to take the examination of the former, as a poor debtor, and to administer to him the oath, if he is entitled to take it. If the parties, or either of them, decline to exercise the privilege, the duty of making the selection devolves upon the sheriff, deputy sheriff, coroner or constable. The justices must be of the quorum and disinterested. These rights of the parties are deemed important; they should be respected in practice, and a reasonable opportunity should be given for their exercise. In the selection, and in procuring the attendance of the justices, some space of time is necessary. The creditor is not bound to make a selection, or employ an officer to make it; but if the debtor should be at the place appointed, at the earliest moment of the time mentioned, it would not be reasonable for him to presume, that the creditor did not intend to make the selection. If acting upon such a presumption, the magistrates, chosen by the debtor, and an officer, should proceed at once to the examination, and in half an hour after the precise time fixed in the citation, the creditor should present a magistrate of his own selection, properly qualified, and demand that he should be associated, with the one chosen by the other party, and be refused, would a certificate of the two former, be sufficient evidence of a fulfilment of the condition of the bond 1 One party may object to the qualification of the justice selected by the other, on the ground of interest or for other cause; time would necessarily be consumed in the discussion of the question, in hearing and answering the reasons offered; if the objection should prove valid in the opinion of the justice selected and others interested, would it be contended, that reasonable time would be denied for the choice of another 1 The statute has pointed out no length of time that one party should wait for the other. It has not provided that the rights of the parties remain unaffected during one full hour, and after that, the notice becomes an entire nullity. If some time may be allowed within which a tribunal may be organized, after the hour named, has arrived, and it does not seem reasonable that there should not be, we see no good ground to hold, that it might not be extended beyond an hour, if in the honest and prompt endeavors of the parties, the selection of justices and their attendance could not be sooner obtained. No decision has been referred to, which establishes the rigorous rule contended for, on the part of the plaintiff. If the parties are entitled to one hour, in which to procure the attendance of the competent tribunal and no more, and an organization should. fail within the time, nothing could be legally done, however desirous the debtor and creditor might be to proceed, for their consent could not confer jurisdiction. When it should appear, that both had been making use of proper efforts, from the time appointed, but without succeeding, in the organization, till the next hour should strike; would that sound annul every thing which had been done, and render abortive any further attempt to accomplish the object, honestly intended ? On what principle is it, that one hour should be the limit, after which no organization can take place ? If instead of the hour, there •should be the minute, as for example fifty minutes after ten, would the same principle be insisted on ?

There is some difficulty in drawing with precision the line of time, after which a discontinuance would take place. Want of careful attention to meet legal provisions should not be encouraged, neither should a strictness, founded upon no good reason, or settled principle be required.

As was said by the Court in Niles v. Hancock & al. 8 Metc. 568, “ we do not think there is any inflexible rule, that every case of this kind shall be proceeded .in within the hour appointed.” Each case must stand upon the peculiar facts attending it. If the debtor should take no measures to obtain magistrates, be absent from the place appointed, till after the expiration of an hour from the time mentioned, and the creditor should have made his appearance, and waited a considerable time, and had gone away, we are not prepared to say that such negligence and delay, and perhaps loss would not operate as a discontinuance.

In this case, it being admitted, that every thing was done in strict accordance with the requirements of the law, excepting in the single particular, which has been considered, we infer that the debtor was present in time; he had requested the attendance of both magistrates, who had the proper qualifications as justices of the peace and quorum, and who acted in the matter. One was present within the hour, and the other came afterwards, when both were appointed by those legally authorized. The debtor was not regardless of his duties and his in-torests; but took seasonable measures to accomplish the object sought. Under the particular facts and circumstances of the case, we are of the opinion, that the proceedings were at the rime appointed in the citation.

Plaintiff nonsuit.