1 D. Chip. 37 | Vt. | 1789
The statute in question gives a privilege to the debtor, in derrogation of the common law right of the creditor ; the right of holding the debtojr in custody until he obtain legal satisfaction. This privilege is given to the debtor, not for his own sake, but for the sake of the publick, who are interested in his labour, and in favour of humanity. The debtor does not demand a remedy against the creditor for an injury he has sustained, the statute is not, therefore, technically speaking, remedial; .but, the case does not turn on this point. The question is, whether there has been any fatal irregularity in the proceedings of the Justices, and whether the plaintiff can take advantage of it in this action.
The jurisdiction of the Justices, in the case under consideration, is in derogation of the jurisdiction of the common law Courts — the proceedings are summary, not warranted by the course of common law proceedings, but warranted solely by the statute. Blackstone observes, after Sir Edward Coke, that “Particular jurisdictions derogating from the general jurisdiction of the Courts of common law are ever taken strictly, and cannot be extended farther than the express letter of their privileges will warrant.” This observation is applicable to the mode of proceeding in the case under consideration, as well as to the jurisdiction of the Justices. The mode is pointed out and regulated, not by the common law, but solely by the statute 3 and must be strictly pursued. A different mode cannot be adopted, under pretence of its being more convenient for the debtor, or for the Justices. This would be to assume an arbitrary power not warranted by law. In this case there has been clearly a deviation from the mode prescribed. The words of the statute so far as relates to the present question, are, “ on application to two Justices of the Peace, one of whom shall be a judge,” &c__They, or either of them shall issue a citation to the creditor or creditors at whose suit the prisoner is confined, notifying him or them to appear before suck Justices, &c. The word ‘such’ is here a relative, referring to the Justices to whom application has been made, and who
The citation was irregular, — The whole proceedings are, therefore, void from the beginning, and do not stand in the plaintiff’s way. Beside there is no mode of reversal in this case.
The bondsman is entitled to no particular favor; he has engaged against the default of the principal; to admit any excuse for him which would not equally avail the principal, would be to deprive the sheriff or the creditor of their indemnity. As to the principal, every man who procures a process (or indeed any proceeding at law) in his favor, must see that it be regular at his peril.
Judgment for the plaintiff.