Granite Bank v. Treat

18 Me. 340 | Me. | 1841

The opinion of the Court was by

Shepley J.

It should appear that the magistrates had jurisdiction, to make their record or certificate evidence of the facts therein stated. It is said, that there is not sufficient evidence in this case to prove it, because they are required to keep a record, which is the best and only proper evidence of their proceedings.

The statute, c. 195, § 10, provides, that the justices shall make out a certificate and deliver it to the debtor; and it makes it the evidence upon which the prison keeper is required to discharge him, and the evidence of his exemption from imprisonment on that or any other execution to be issued on the same judgment or any other judgment founded thereon. In the cases of Kendrick v. Gregory, 9 Greenl. 22; Murray v. Neally, 2 Fairf 241; and Agry v. Betts, 3 Fairf. 415, copies of the proceedings, or the originals, appear to have been introduced; and while it is decided that a copy of the record is competent and proper evidence, no one of the cases decides, that the certificate is not also evidence. On the contrary it stated in Kendrick v. Gregory, that the proceedings of the justices may be proved by their record “ as well as by a certificate founded on the reeord.”

The certificate was stated to be evidence also in the case of Black v. Ballard.

It is true as stated in the argument, that no presumption is to be made in favor of an inferior tribunal. Its jurisdiction must appear on the face of its proceedings. Their certificate in this case states their own character, the parties to the process, the commitment of the debtor, his desire to take the oath, and that he had caused the creditor to be nolified according to law ; and these facts are sufficient to make out a prima facie case of jurisdiction. The certificate however would not be conclusive on this point, and it would be competent for the plaintiff to prove that they had not jurisdiction. Smith v. Rice, 11 Mass. R. 507. And the cases, which have decided that the record or certificate was conclusive evidence of the facts therein stated, did not decide it to be so in cases where it appeared that the justices had no jurisdiction.

It was decided in Kendrick v. Gregory, and in Murray v. Neally, that a neglect to file the certificate with the prison keeper was no breach of the bond under the statute of 1822, and the statute of 1835 does not materially differ from it on that point. It is said that the creditor may be wholly unable to ascertain whether the debtor has taken the oath, if the certificate be not filed. It may be very desirable that it should be filed, and that the condition of the bond should require it; but the court cannot decide, that the bond is forfeited for an omission to do an act not required by it.

Exceptions overruled.