The opinion of the Court was drawn up by
Shepley JThis suit is upon a poor debtor’s bond. The defendants introduced a certificate signed by two justices of the peace and of the quorum shewing, that the creditor had been duly notified and that the debtor had taken the oath prescribed by the statute for the relief of poor debtors, c. 148, ■§> 28. This certificate had been made since the commencement of the suit. The justices had previously made another certificate according to the form prescribed by the statute, which did not state, that one of the justices had been selected by the creditor and the other by the debtor. The statement of a fact, which must exist, if the proceedings were legal, though not required by the prescribed form, would seem to be appropriate and desirable; and its insertion would not destroy the effect of a certificate otherwise formed. It has been decided, that the delivery of the certificate to the prison keeper is not essential to the performance of the condition of the bond. And that the form of it may be amended or varied in accordance with the truth after the commencement of the suit. The last certificate only accomplishes the same purpose in a little different form.
The objection, that the notice was returned before one justice only, who ordered a continuance according to the agreement of the parties, cannot prevail. The jury have *200found, that the justices were selected before the continuance was ordered. Whether they were authorized by the testimony to come to such a conclusion cannot be the subject of inquiry and consideration under a bill of exceptions. Nor can the objection prevail, that the justice, who issued the citation, could not legally act in the subsequent proceedings. Any justice of the peace of the county is authorized by the twenty-first section to issue the citation. The twenty-fourth section requires that the examination shall be before two disinterested justices of the peace and of the quorum. The mere fact, that a justice has issued a citation, cannot prevent his being regarded as disinterested, and being otherwise qualified, he will come within the provisions of the statute, and be authorized to act. The instructions relating to the right of the party to revoke the authority of the justice, who has been selected by him, do not admit of a construction, that his right to do so was denied, if exercised before the justice had entered upon the performance of the duty. They did but state in effect, that if the plaintiff, by his attorney, had, on December 18, selected a justice, who had so far entered upon the performance of his duties as to concur in an order for a continuance, and had agreed, that such justice should continue to act at the adjournment on December 20, unless he should bring with him another justice to perform those duties, he could not revoke the authority so imparted and existing, without complying with the condition upon which that right had been reserved to him. When the tribunal has been organized according to the provisions of the statute, and has entered upon the performance of its duties, neither party can interrupt the performance of them by denying or attempting to revoke the authority of one of the justices, without the consent of the parties interested. The instruction, “ that the testimony offered by the defendants, to prove a selection by plaintiff’s counsel, might be considered as corroborated by the allegation of the fact in the certificate of the justices,” must, like all other instructions, be considered with reference to the state of facts to which it was applied. One of the justices had been called ■ by the plaintiff and had *201testified. The other had been called by the defendants and had testified. Their testimony was not in perfect accordance. The jury must endeavor to ascertain the truth from their testimony considered in connexion with the other facts and circumstances. They had both signed a certificate under the sanction of their official oaths and characters stating, that one of them had been selected for the creditor. This was to be considered, and it could not be erroneous to state, that the testimony of the one, who stated that fact on the trial, might be corroborated, or the opposing testimony weakened, by the fact, that both had before signed a paper stating the same thing.
It is urged that the signature of one of the justices was obtained to that certificate by the fraud or misrepresentation of the other. It does not appear, that any such point was made at the trial. If so, it would have been the proper subject for the consideration and decision of the jury; but the Court cannot act upon any such state of facts.
It is not perceived, that there was any error in the other instructions. Remarks, which do not state any rule or principle of law, made by a presiding judge upon the testimony, are not the proper subject for consideration before a court of law. In this case those, which are considered by the plaintiff’s counsel as unauthorized or uncalled for by the testimony, appear to have been made only hypothetically.
Exceptions overruled.