
    Smith v. Huntington.
    In the Court below,
    Joseph Smith, Plaintiff; Joshua Huntington, Defendant.
    
    In an action against the sheriff for an escape, the defendant pleaded,that the prisoner had taken the poor debtor’s oath, &c. in which plea, he averred that the prisoner prayed out a proper citation and notification to the creditor to appear, &c. exception to the plea for more parti-culav description, that the same was sufficient.
    A citation by a poor debtor to his creditor to appear before A. B. justice of the .peace, or some other proper authority, is legal, though not returned to A. B.
    A poor debtor cannot be detained in prison, after taking the oath, unless money be left for his support.
    was an action against the defendant, as sheriff of „ the County of New-London, for the escape of one John Fer-nald, committed on an execution in favour of the plaintiff.
    service of such citation was made by leaving a copy with Lanman, Esquire, his attorney of record : That the, same “ being so served, was returned to Asa Spalding, Esquire,who then was a justice of the peace for said County: * The defendant pleaded, in bar, “That Fernald, being a poor “ debtor, unable to support himself in prison, prayed out a “ proper citation and notification to notify the plaintiff to ap- “ pear before Elisha Hyde, Esquire, a justice of the peace for “ New-London County, or some other proper authority, at “ the dwelling-house of Seth Minor in Norwich, under- “ keeper of said gaol, on the 12th day of August, 1805, at “ tivo o’clock in the afternoon, to shew cause,” &c. That the plaintiff being an inhabitant of the state of New -Hampshire, That justice Spalding attended at the time and place mentioned ; examined into Fernald’s circumstances ; and being of opinion, that he was a proper subject of the poor prisoner’s oath, administered the same to him, about thirty minutes after three o’clock : And that Fernatd remained in gaol until about four o’clock of the same afternoon, and then, no money having been left for his support, went at large ; which was averred to be the same escape complained of in the declaration.
    The plaintiff replied, That within two hours after the oath was administered, and before the usual time of supper, he left three dollars with the gaoler for the support of Female!; and that, when Fernald went at large, he had not become chargeable for necessary food, either to himself, or to the gaoler.
    To this replication the defendant demurred ; and the Superior Court adjudged the same to be insufficient.
    
      Jngersoll, and Daggett, for the plaintiff.
    1, The defendant has undertaken, in his plea, to set forth, the citation to the creditor specially ; it must, therefore» appear to be a legal one. But he has not shewn, that it was signed by a justice, or other magistrate, or that it was signed at all. The Court cannot infer that it had the Legal requisites,
    2. It does not appear from the citation, that A Spalding, Esquire, had any authority to administer the oath, inasmuch, as the creditor was summoned to appear before Elisha Hyde, Esquire, or some other proper authority. The citation ought to specify the court with precision, before which the creditor is summoned to appear, that he may he prepared to take any proper exceptions to the jurisdiction. The magistrate may be interested, or may be too nearly related to judge. This is dearly -a judicial act.
    
      3. The object of the law is to provide for the support of the prisoner. He could not, therefore, lawfully depart, until the regular time for the next meal after the oath was adminis-terecl. He could not, before that time, need support. Be* sides, tire creditor is tp have a reasonable time to leave the money, which he had npt had,in this case, before|the defendant ■went at large, There was, then, an escape. These points have been settled, by the cases of Fitch v. Cook, 
       Fitch v. Scott, 
      
       Abel v. Godfrey,  and Wells v. Undsley. 
      
    
    
      A. Spalding, for the defendant.
    1. The plea states generally, that the prisoner prayed out á proper citation ; and this is sufficient.
    2. The practice to cite a creditor to appear before A. B. or some other proper authority, is, at least, twenty-seven years old; and this exception was never taken before. There is nothing in the statute opposed to such a practice. Warrants issued for the apprehension of criminals are generally made returnable in the same manner. So are notifications to be present at the taking of depositions.
    3. The statute is express, that after the oath is administered, the keeper of the gaol shall not stand charged with the prisoner unless the creditor shall allow him a weekly maintenance.  If the gaoler is not charged with the prisoner, what right has he to detain him ? To say he shall not stand charged, is the same as to say that he shall not hold. If you depart from the statute, what time will you fix upon ? It is said, the prisoner, in this case, ought to have staid, till supper-time. But different men have different hours of supping, and some men eat no suppers at all. The cases cited from Root’s Reports are not law.
    
      
      
         1 Root 285.
    
    
      
      
        ib 351.
    
    
      
      
        Ib. 494,
      
    
    
      
      
         2 Root 481,
    
    
      
      
         Slat. 222. edit, 1796.
    
   By the Court,

unanimously,

The judgment was affirmed.  