22 A.2d 153 | Vt. | 1941
This is a petition for a writ of mandamus to compel the respondents, the Commissioners of Jail Delivery for the County of Rutland, to admit the relator to the poor debtor's oath. The Commissioners have been served with the petition and have notified us that they do not desire to be heard.
The relator has been confined in close jail upon a certified execution granted after a judgment obtained against her in an *92
action of tort at the March Term, 1940, of Rutland County Court and affirmed in this Court at the November Term, 1940. SeeCallahan v. Disorda,
The Commissioners of Jail Delivery perform a judicial function,(In Re Blake,
P.L. 2216 provides that: "When the commissioners find *93 that the prisoner has not estate to the amount of twenty dollars, nor sufficient to satisfy the execution on which he is committed, exclusive of property exempt from execution, and has not disposed of any part of his estate to defraud his creditors, nor disposed of the same after his committment to defraud the committing creditor, or to prefer some other creditors to him, they shall admit the prisoner to the poor debtor's oath * * *" This statute is mandatory and imposes an inescapable duty upon the Commissioners when the requisite facts have been found by them.
An examination of the findings discloses that this is the situation in the present case. While it is not specifically found that the relator has not disposed of her property to defraud her creditors, the necessary inference from the facts found is to this effect. The mortgage on the automobile cannot be considered as a fraudulent disposal of property. The consideration was valuable and adequate in the eyes of the law, (Jones, Admx. v.Williams et al.,
There is, of course, a distinction between a fraudulent and a preferential conveyance; the former being malum in se, the lattermalum prohibitum. Van Iderstine v. Nat'l Discount Co.,
We hold, therefore, that the relator has a clear legal right to be admitted to the poor debtor's oath. Our next inquiry must be whether she has an adequate remedy other than by writ of mandamus.
Under our statutes (P.L. 2208-2217 incl.) the Commissioners of Jail Delivery constitute the only tribunal having jurisdiction to admit a poor person, imprisoned on an execution issued upon a judgment in a civil cause, to the poor debtor's oath; there is no appeal from their decision and no provision for a review of their proceedings by this Court or by the County Court. In re Blake,
A petition for a writ of mandamus is addressed to the sound judicial discretion of the Court (Sherwin v. Ladd and Lord,
Let a writ of mandamus issue commanding the Commissioners ofJail Delivery for the County of Rutland, forwith to admit therelator to the poor debtor's oath and to deliver to her twocertificates thereof, in accordance with the provisions of P.L.2216. No costs are awarded.