Paine v. Ely , 1 N. Chip. 11 ( 1789 )

Chipman, Ch. J.

The statute in question gives a privilege to the debtor, in derrogation of the common law right of the creditor ; the right of holding the debtojr in custody until he obtain legal satisfaction. This privilege is given to the debtor, not for his own sake, but for the sake of the publick, who are interested in his labour, and in favour of humanity. The debtor does not demand a remedy against the creditor for an injury he has sustained, the statute is not, therefore, technically speaking, remedial; .but, the case does not turn on this point. The question is, whether there has been any fatal irregularity in the proceedings of the Justices, and whether the plaintiff can take advantage of it in this action.

The jurisdiction of the Justices, in the case under consideration, is in derogation of the jurisdiction of the common law Courts — the proceedings are summary, not warranted by the course of common law proceedings, but warranted solely by the statute. Blackstone observes, after Sir Edward Coke, that “Particular jurisdictions derogating from the general jurisdiction of the Courts of common law are ever taken strictly, and cannot be extended farther than the express letter of their privileges will warrant.” This observation is applicable to the mode of proceeding in the case under consideration, as well as to the jurisdiction of the Justices. The mode is pointed out and regulated, not by the common law, but solely by the statute 3 and must be strictly pursued. A different mode cannot be adopted, under pretence of its being more convenient for the debtor, or for the Justices. This would be to assume an arbitrary power not warranted by law. In this case there has been clearly a deviation from the mode prescribed. The words of the statute so far as relates to the present question, are, “ on application to two Justices of the Peace, one of whom shall be a judge,” &c__They, or either of them shall issue a citation to the creditor or creditors at whose suit the prisoner is confined, notifying him or them to appear before suck Justices, &c. The word ‘such’ is here a relative, referring to the Justices to whom application has been made, and who have issued the citation, and has precisely the meaning of this expression : — u the same Justices to whom application shall have been made as aforesaid.” In the sqjne sense the word occurs not less than ten times in this paragraph. To give it the construction contended for by the defendant’s counsel, would run the statute into absurdity and nonsense: — thus, “ On application to two Justices, &c. they, or either of them, shall issue a citation to the creditor or creditors, &c. to appear before some such-like Justices, &c. which citation shall be served on some such-like creditor or creditors, at least twenty days before the time of appearance in some such-like citation, & c.” It is clear from the statute that Elias Weld had no power to issue a citation to the creditor to appear before any Justices, of whom he was not to be one. This jurisdiction is not incident to .the office of Justice, but is given by the statute to those, to whom application is made. It might have been given to any other class of men, as for instance, to afty two freeholders, to whom application shall be made. Had that been the case, no one would have thought, that one freeholder might have cited the creditor to appear before other freeholders. The consequence is that the proceedings of Elijah Robinson and John Weld are wholly irregular. The only remaining point is whether the plaintiff can take advantage of such irregularity in this action. “ There is great difference between erroneous process, and irregular (that is void) process; the first stands valid and good, until it be reversed; the latter is an absolute nullity from the beginning. The party may justify under the first, until it be reversed; but he cannot justify under the last, because it was his own fault that it was irregular and void at first.” 3 Wils, 341. Parsons vs. Lloyd. 2 Black. Rep. 845.

The citation was irregular, — The whole proceedings are, therefore, void from the beginning, and do not stand in the plaintiff’s way. Beside there is no mode of reversal in this case.

The bondsman is entitled to no particular favor; he has engaged against the default of the principal; to admit any excuse for him which would not equally avail the principal, would be to deprive the sheriff or the creditor of their indemnity. As to the principal, every man who procures a process (or indeed any proceeding at law) in his favor, must see that it be regular at his peril.

Smith and Knight, Is. were of the same opinion.

Judgment for the plaintiff.