
    Elijah Paine, Esq., vs. Joel Ely and Joel Ely, Jr.
    Dec. adjourned term, 1789.
    toyieashef¡™of fyMm,nror”e£ ting a prisoner to the liberties. of the prison.
    prffone/dí paitui’ otc‘
    R1 e a. — That the prisoner, Sárged Suuaer fatinggofísima goalers.
    This was an action on a bond assigned by the sheriff of Windsor County to the plaintiff, conditioned, that .Joel Ely, then a prisoner in the common goal in said . . . . . _ Windsor, on execution at tne plain tin s suit, should not depart- the liberties of said prison, etc. (in common form). Breach assigned, that- the said Joel did depart, contrary to the condition; wherefore, etc.
    
      Buck, for the defendants,
    plead a very lengthy plea in bar, the substance of which was, that after the execution of said bond, viz., on the 29th day of June, 1789, the said Joel Ely made application to Elias Weld, one of the judges of the County Court, for said county, who thereupon issued his citation for the said Paine to appear at on , bofore Elijah Bobinson, one of the Judges for the County Court for said ^ County, and John Weld, Esq., Justice of the Peace, to show cause why the said Joel should not be admitted to the insolvent debtor’s oath; which citation wasregularly served, etc. I hat on at the said E. B. and J. W. proceeded to examine the said Joel, arid did administer the oath, and gave a certificate thereof agreeably to the Statute in such case made and provided : That the said Joel thereafter remained within the said prison and the liberties thereof, for the space oí twelve hours. That no provision being made for his support, as directed by the Statute, he departed. That until that time he had kept within the liberties of the said prison, according to the condition of the said bond.
    Demurrer.
    Counsel for plaintiff.
    Counsel for defendants.
    To this there was a demurrer and joinder in demurrer.
    
      By Hutchinson and Jacob, for the plaintiff,
    
    it was argued that the statute in this ease has erected a sum ■ •mary jurisdiction, that the justices derive their authority solely from this statute, that they must pursue their authority precisely as pointed out by the statute, otherwise the whole is coram non judice. The ■ statute requires that on application of a debtor confined, etc., to two Justices of the Peace, one of whom shall be Judge, etc., they, or either of them, shall issue a citation to the creditor or creditors at whose suit, etc., notifying them to appear before such J ustices, at a time and place therein mentioned, to show cause, etc. That the citation in this case was not issued by the J ustices Avho administered the oath, or either of them — therefore they had no jurisdiction. One set of Justices are not empowered by the statute to convene the creditors before another set of Justices.
    
      Buck for the defendants.
    
    The statute, as it provides for the relief of poor debtors, is remedial, and ought to be construed liberally. ' B. W. had a right to issue a citation ; B. R. and J. W. are such Justices as have a right to hear, examine, and administer the oath. There cannot, therefore, be a want of jurisdiction, as argued by the plaintiff’s counsel.
    It is'likewise a case against bail, who ought to be favored. It would be hard that either bail or principal should be accountable for the doings of the Justices. Their proceedings, if irregular, ought to be reverséd, but, until reversed, ought to be deemed valid— otherwise sheriffs and goalers, who are no judges in this matter, may also be exposed. It was also insisted “ that such Justices,” in the statute does not mean the same Justices who issued the citation, but similar Justices. Had it intended the same Justices, the word “ aforesaid” had been used.
    “/S ieply‘
    Opinion of the
    Thestatoteisin th™Scommo°n lawriglKi
    ... éd7ai.enseiem"
    tionhVvenáto tiífs J«iseeB is to be taken strictly.
    
      The plaintiff's counsel in reply.
    
    This is not a remedial statute. If it gives a privilege to the debtor, at the same time it takes away the common law right of the creditor. It is a rule that all summary jurisdictions must confine themselves strictly to their powers. Neither writ .of error nor certiorari will lie. If advantages cannot be taken of the irregularity in this way, the creditor has no redress, be the proceedings ever so illegal and unjust. They therefore prayed judgment for the plaintiff.
   The Chief Justice

delivered the unanimous opinion of the Court.

The statute in question gives a privilege to the debtor, in derogation of the common law right of the creditor — the right of holding the debtor in custody until he obtain legal satisfaction. This privdedge is given to the debtor, not for his own sake, but for the sake of the public, who are interested in his labor, and in favor of humanity. The debtor does not demand a remedy against the creditor for an injury he has sustained. The statute is not, therefore, in a law sense, 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 is proper here to take advantage of the irregularity, if any.

The jurisdiction of the Justices, in the case undef consideration, is in derogation of the jurisdiction of the , , ,i . common law courts, the proceedings are summary, not warranted by the course of common law proceedings but warranted solely by the statute. Blackstoue observes, after Sir Edward Coke, that “ Particular juris- “ dictions, 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 J ustices. The mode is pointed out and regulated, not by the common law, but solely by the statute, 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, etc., 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 such Justices, etc.” 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, “ the same Justices, to whom application shall have “ been made, as aforesaid.” In- the same sense the-word occurs not less than ten times in this paragraph. ¡

Paine YS. Ely, etc. Black. Oom. yoI. 3, p. 3fi.

The mode pointed out by the statute must be strictly pursued.

Words of the Statute.

“Such Justices,” means the ■same J ustices.

Absurdity of the other construction.

To give it the construction contended for by the defendants counsel, would run the statute into absurdity and nonsense, thus : “ On application to two Justices, “ etc., they, or either of them, shall issue a citation to “ the creditor or creditors, etc., to appear before some “suchlike Justices, etc., which citation shall be served “ on some suchlike creditor or creditors, at least twenty “ clays before the time of appearance in some suchlike citation, etc.” It is clear from the statute that E. W'. 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 any 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.

This jurisdiction is not incident to the office oi'juslice.

Proceedings are irregular.

3. wnf, 345. Parsons vs. L1£y|-,ack Eep 845, S- °‘

are void,

The surety is more íavor than the principal.

See the above

The consequence is, that the proceedings of E. K. and J. W. are wholly irregular.

The only remaining point is, whether the plaintiff is proper to take advantage of such irregularity here, before reversal.

There is great difference between erroneous pro- , , . , ... ,. cess, 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.”

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

The bondsman is entitled to no particular favor ; he lias engaged against; the default of the principal: to . a r 7 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.

There must therefore be

Judgment for the Plaintiff.  