| N.H. | Jun 15, 1870
This case was twice argued, and two separate decisions given upon the different points arising therein; we give the substance of both here :
From the facts, as stated by the parties, it appeared that Cogan, the principal obligor, on the bond in suit, having been arrested on execution, was, on the 29th of March, A. D. 1866, surrendered by his bail, into the supreme judicial court, then in session, in and for Belknap county, and being then and there in custody, as prisoner, gave the bond in suit, with sureties, as provided by law, for the relief of poor debtors. Subsequently, said Cogan, on the 4th of March, A. 1). 1867, applied to Judge Bellows, at Concord, for the appointment of two justices of the' peace, one of whom, to be of the quorum, before whom he might apply, to be admitted-to take the aforesaid oath. On the 12th day of March, 1867, Justice Bellows appointed Hon. Asa Fowler and Lyman D. Stevens, then justices of the peace throughout the state, as the tribunal, before which, the said Cogan, might appear and have a hearing. It may be here remarked, that it is a couceded fact in the case, that Justice Bellows has no knowledge, that Cogan had been arrested in Belknap county, and had given his bond there. It appeared, also, that on the same 12th day of March, said Cogan preferred his petition to said trial justices, asking to take the poor debtor’s oath, at Concord, on the 28th of the same month; and that an order of notice issued on this application, which was served on E. A. Hibbard, attorney, to the judgement creditors, on the same 12th day of March, and that subsequently on the said 28th of March, said Cogan, at a hearing before said justices, at said Concord, was, by them, duly permitted to take the poor debtor’s oath.
It has been decided in this state, that when a poor debtor is arrested in one county, and gives his bond with the condition to take the poor debtor’s oath in one year, or surrender himself to the creditor, the taking of the oath in another county, is not a performance of the condition of the bond.
The statute made and passed by the legislature, June session A. D. 1864, Pamphlet Laws, chap. 2881, changed the mode of appointing the trial justices. The obvious intent of this act was to secure greater impartiality in the tribunal having jurisdiction over this class of cases. This object was effected by taking away from the debtor, the choice of the men who were to try him, and by conferring the power of appointment, upon some member of the supreme judicial court, who could have no other motive but to appoint disinterested men as trial justices. There was no other material change by that act, save that but one of the said justices need be “ of the quorum.” The character and ability of the trial justices in this case, are acknowledged to be altogether trustworthy. But the objection lies to the hearing as had in Merrimack county. The petition of Cogan himself to the justices gives no knowledge of the place of arrest, nor is it to be presumed that said trial justices had such knowledge from any source.
We think the petition should embrace an averment, statiug the county where the arrest was made, and then the justices could legally assign the place of trial, in the proper county.
In this instance, the court and trial justices finding Cogan making his several petitions in Merrimack county, might well have presumed ilia arrest was there. It is not made a question but that the magistrates as appointed, might have had full jurisdiction of this case, provided, they had appointed the place of hearing in Belknap, instead of Merrimack county. Young v. Bride, 25 N. H 482.
But having assigned the place of hearing in Merrimack county, and having proceeded to execute their official duties there, so far as to discharge the prisoner from his arrest, they exceeded their authority, and their proceedings became a nullity. State v. Fowler, 28 N. H. 184.
Proceedings óf tribunals, which have no jurisdiction of the subject-matter, upon which they assume to act, are absolutely void, and there is no presumption in favor of the jurisdiction of inferior courts, or persons vested with special powers. Sanborn v. Fellows, 22 N. H. 473 ; Morse v. Presby, 25 N. H. 299 ; Goulding v. Clark, 34 N. H. 159.
But it is suggested by the counsel for the defendants, that he was misled by the conduct and declarations of Mr. Hibbard, counsel then and now of the plaintiffs, in consequence of what was done and said by him, both as to the appointment of said magistrates, and as to
In settling this question, which is now strenuously urged by the counsel for the defendants, the court must be permitted to take the facts embraced in the case as agreed to by the respective counsel, as true, and as affording the competent evidence proper for the court to weigh, and that the law applicable to these facts, and justly arising therefrom must bo regarded as the law of the case.
It is suggested by the defendants’ counsel in his argument, that the letter of Mr. Hibbard served to mislead the defendants, or to entrap them, and that as a legal consequence, the plaintiffs, as creditors, have waived their right now to set up their claim upon the bond in suit; or, in other words, should be estopped now to set it up. The law on this subject is sometimes stated in this language : that when one by his words or conduct causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as alter his own previous position, the former is concluded from averring against the latter a different state of things, as actually existing at the same time. Davis v. Handy, 37 N. H. 65; Simons v. Steele, 36 N. H. 73 ; Odlin v. Gove, 41 N. H. 465.
The proposition is sometimes put in other language, perhaps more intelligible; a party is not estopped by his acts or declarations, unless the other party has done or omitted something in consequence of them, by which he will be prejudiced, unless they are made good. Norris v. Morrison, 45 N. H. 499 ; Austin v. Thompson, 45N. H. 113 ; Walker v. Richards, 41 N. H. 391.
Testing the declarations and conduct of plaintiffs’ attorney by these rules, it does not occur to us how the defendants’ counsel can say they were entrapped or misled, either as to the magistrates, or place or time of the hearing, as proposed in the correspondence which passed between the parties, prior to March 4, 1867, Mr. Hibbard had not distinctly accepted either of the proposed justices, because he proposed to substitute Mr. Gale, instead of one of them. As to the place, he did not accept of the proposition to adopt Concord, but named Laconia as the more convenient place. No objection as to the time of the hearing then. Hibbard made the open and avowed declaration that for the present, he did not like to waive any rights.
It appears to us that thus far, the answer of Mr. Hibbard conveyed to the other party reasonable notice, that whatever course you may take as to the tribunal, time or place of hearing, I reserve to myseif the right to take such legal advantages, as the law will give me, of any defect in your proceedings. The answer of Mr. Hibbard was so understood, and the other side does not act upon any declaration or conduct of the plaintiffs or their attorney, but applied to the authority assigned by the law, to make certain the magistrates, and of course, it devolved upon the tribunal to fix time and place of hearing, by giving to the opposite party due notice of the place of
Again, we find by the case, that after the time and place for the hearing, was fixed by the trial justices, and that the counsel "for plaintiffs, could not be present at the time assigned, on account of other engagements. He thereupon applies to defendants’ counsel for a postponement of the hearing, to a later day. This offer, perhaps for good reasons, was rejected by the defendants’ counsel.
We do not claim the right to assert, that either counsel was insincere, or not acting in good faith, the one toward the other. We can say, that we do not perceive any legal ground, for the defendants to set up their estoppel against plaintiffs’ claim. The defendants could not be presumed ignorant that the arrest of Cogan was made in Belkhap county, and that his bond was executed and filed there. And thus he was deemed in law, a prisoner there, if the conditions of the bond, were enforced in a certain way, and that the statute law upon this subject had twice received a construction from our courts, that the oath to Cogan as a poor debtor, could only be administered m the county, where such arrest was made. That such was the law, the defendants could not be presumed ignorant, and as suggested in the decision of Odlin v. Gove, the means of knowledge being within the reach of the party, i"f he failed to use due diligence to ascertain the truth, he can have no cause to complain. The law has distinctly pointed out a beaten path for the debtor, in such cases, to travel iu. For the present we see no reason why there should not be
Judgment for the plaintiffs.