18 Vt. 401 | Vt. | 1846
The opinion of the court was delivered by
The complainant does not deny, that, under the proviso to section 63 of chapter 28 of the Revised Statutes, his arrest and commitment were legal; but he claims, that his imprisonment has since became unlawful, in consequence of his compliance with the provisions of the statute of Nov. 5, 1845.
It is first objected, in behalf of the creditors, that the case is not proper for the writ of habeas corpus, but that the complainant should be put to his audita querela. This objection would have much force, and probably be decisive, did the party ground his claim to be discharged upon any matter in pais, upon which an issue suitable for a jury trial might be expected to arise. But, when all is made to depend upon certain papers, or documents, prescribed by statute, the objection does not hold.
It is farther objected, that the statute of 1845 does not apply to a case, where an execution has issued against the body, oh the ground
It is also claimed, as the only proper construction of this last statute, that its provisions must be complied with before the commitment of the debtor. The statute certainly requires great diligence and expedition on the part of the debtor; — he is to notify the officer, at the time of his arrest, that he intends to avail himself of the benefit of the statute; — he is thereupon to give a like notice to the creditor, and immediately thereafter to appear and have a hearing before the authority signing the writ. And it is doubtless the more obvious inference, that all these measures will be taken before commitment. But the statute imposes no restraint, or delay, upon the officer, while it professes to secure this right to the debtor. And we are unwilling to admit, that the purpose of the statute can be defeated by the creditor, or the officer, if the debtor is guilty of no neglect, and is able to complete the requisite proceedings after his commitment. In many cases this would, indeed, become impossible. But in this instance the complainant was enabled to follow out the provisions of the statute. He gave the several notices in due time, appeared before the clerk, had a hearing, and procured a .sufficient certificate to be duly endorsed upon the execution.
I have thus noticed all the grounds taken in defence, which can be regarded as peculiarly applicablé to this new case arising under the statute. The other objections urged have never been allowed to prevent the discharge of a party upon the writ of habeas corpus.
We therefore come to the conclusion, that the prisoner must be discharged.