Eaton v. Miner

5 N.H. 542 | Superior Court of New Hampshire | 1831

By the court.

The question to be decided in this case, is, whether Charles Miner was legally discharged from imprisonment.

The first objection to the discharge is, that the application to the magistrates was not in due form of law. It did not state that the applicant was destitute of property ; and so it did not appear upon the face of the application by his own showing*, that lie was entitled to take the poor debtor’s oath.

The application was not, perhaps, in the best form, which might have been adopted. But the statute prescribes no form. It only enacts that the debtor may apply to two magistrates, and pray to be admitted to take the oath, prescribed by the statute. There is only one case in which the debtor is entitled to be admitted to take the oath ; and that is, when he has not had, at any time since his commitment, estate to the value of twenty dollars, except goods and chattels by law exempted from attachment and execution. And in taking the oath he must swear, that he has no estate, real or personal, to the amount of twenty dollars excepting goods and chattels so exempted. The circumstances, which entitle the debtor to be discharged, are made known to the creditor by the statute, and need not, for his convenience, be alleged in the application. And the very prayer to be admitted to take the oath is, in effect, an offer to swear to the facts which entitle the debtor to be discharged. We are, therefore, of opinion, that it is not essential to the validity of the application, that it should be in express terms alleged, that the debtor is destitate of property, and that this objection to the proceedings cannot prevail.

Another objection to the discharge is, that due notice of the time and place of the hearing before the magistrates was not given to the creditor. The exception taken to the notice is, that the original application and order thereon, were delivered to him, instead of a Copy, as the statute directs. Why such an experiment should have been made, it is difficult to conjecture. The words of the statute are very clear and plain. Yet it is very certain, that the creditor had, in effect, precisely the same notice which he would have had, if copies, instead of the originals, had been delivered to him. And we are unable to find any sound reason, why we should hold that the delivery of the originals was not due notice, although! the statute has made copies sufficient. We should suppose, that if the delivery of copies is due notice, a fortiori, a delivery of the originals must be so.

Judgment for the defendant.