8 Vt. 34 | Vt. | 1836
The opinion of the court was delivered by
The pleadings in this case have been extended altogether beyond what is either necessary or proper. By setting forth the certificates of discharge, executed by the jail commissioners, in a plea in bar, all the questions which have been made in this case would have been presented.
Robert Beach was committed to jail on an execution at the suit of Horace Lovely. He was discharged from his imprisonment by the commissioners of jail delivery, on taking the oath prescribed in the statute. The manner, in which Mr. Lovely was notified of the application of Beach for the benefit of the statute, is set forth in the certificates given by the commissioners, as well as the fact of the appearance of the attorney of Mr. Lovely, and the determination of the commissioners, on the plea of abatement, filed by him. The questions which are here made, are as to the sufficiency of that notice.
It is settled by repeated adjudications, that the commissioners must decide upon the sufficiency and regularity of the notice given to the creditor, on the application of the debtor to be. admitted to the oath for poor debtors. They are required to decide upon this
If a plea in abatement can be interposed to a citation, it must necessarily be heard before, and adjudicated upon by the commissioners, and their decision thereon must be final and conclusive.
The commissioners have decided, that the citation to the creditor was properly served, by leaving a copy with his agent or attorney of record. The question was presented to them for their determination, by a plea in abatement, and if their view was erroneous or their decision incorrect, it cannot be reviewed in this or any other suit.
The only cases where the certificates of commissioners have been adjudged void and inoperative, are when no notice to the creditor has been given, although required by the statute. The commissioners are not constituted judges of the'question, whether notice is or is not to be given; but when notice is attempted to be given, they are to determine on the sufficiency of the notice, and certify accordingly.
The only ground on which the plaintiff claims to recover in this case is, that no notice was given to the creditor in the execution. But he appeared by his attorney, Mr Weston, and filed a plea in abatement that the service of the citation was defective. When a party appears to a suit and files a plea in abatement, on which a judgment is rendered, overruling the plea, he cannot after-wards, either in that or any other suit, aver or allege that he had no notice of the suit. Neither of the judges, in the case of Raymond vs. Southerland et al. 3 Vt. R. 494, intimate an opinion, that the decision of the commissioners oh ‘ a plea of abatement could be re-examined and set aside in a collateral suit.
The present is not a case where the commissioners have decided that “notice to a person other than a creditor is sufficient.” Their decision is, that notice was given to the creditor by serving the citation on his attorney.
The propriety of the commissioners giving a certificate in the form adopted in this case, may well be doubted. It would be attended with great hazard, if the commissioners, who are to determine on the question of notice, may certify the facts proved before them, together with their decision thereon; and the debtor,*bis bail, or the sheriff are to incur the risk of their determination being a legitimate inference from the facts found. " ’
In every point of view we consider that the certificate of tbe¡
The judgment of the county court is therefore affirmed.
