Fernald v. Noyes

An application to take the oath prescribed for the relief of debtors in execution, is sufficient, if it state the facts necessary to be stated, and contain a petition for the relief provided, in intelligible terms, although the word “ oath ” be omitted. The order of the justices, appointing the time and place for hearing such a petition, is not required to be signed by them before issuing a certified copy of the petition and order for service upon the creditor. A service of a copy of the petition and order upon one of the attorneys of the plaintiff, in the original action, is Sufficient, where the appearance was by two, acting in partnership. The justices may adjourn the hearing to a different place from that at which the hearing is commenced.

Debt, upon a bond, dated the 18th day of January, 1851, the condition of which was that one William T. Noyes, then a prisoner at the suit of said Fernald, should, within one year from the date thereof, apply to the proper authority and be admitted to take, and actually take, the oath or affirmation prescribed by law for the relief of poor debtors, or in default thereof should surrender himself to prison, as prescribed by law. The writ was dated February 10th, 1852. The general issue was pleaded, with a brief statement, setting forth that the condition of said bond has been fully performed; that said William T. Noyes, within one year from the date of said bond, applied to the proper authority, was admitted to take, and, on due and legal notice to the attorney of said Eernald, did actually take the oath prescribed by law for the relief of poor debtors. The said issue was joined by the plaintiff, and the allegations set forth in the defendant’s brief statement were denied by the plaintiff. On the 8th day of December, 1851, the said William T. Noyes made an application to take the poor debtor’s oath, and certified copies of the petition and order of notice were as follows: “ To John J. Prentiss and Thomas J. Harris, justices of the peace and of the quorum for the county of Sullivan. Shows William T. Noyes of Claremont, in the county of Sullivan and State of New Hampshire, that on the 18th day of January, A. D. 1851, he was arrested by a deputy sheriff of said county of Sullivan, upon an execution recovered by William R. Fernald of Boston, in the county of Suffolk and Commonwealth of Massachusetts, and gave bond, as provided by law, that he had not, at the time of his arrest, nor at any time afterwards, estate to the value of twenty dollars, excepting goods and chattels by law exempted from attachment. .He, therefore, prays to be admitted to take the prescribed by the 200th chapter of the Revised Statutes. W. T. Noyes. Dated at Claremont, December 8th, 1851. Sullivan, ss. Claremont, December 8th, A. D. 1851. Upon the application aforesaid, it is ordered that the said debtor give notice to the said creditor, or to James M. Gates, Esquire, of Claremont aforesaid, his attorney, to appear at the office of John J. Prentiss, in Claremont, in said county, on the first day of January next, at one of the clock in the afternoon, to show cause, if any he have, why the said William T. Noyes should not be admitted to take said oath, by giving to the said creditor, or to the said James M. Gates, his attorney, or leaving at his usual place of abode, or at the usual place of abode of his attorney aforesaid, a copy of the said application, with a copy of this order thereon, at least fifteen days previous to the said first day of January next. Í Justices of the peace and of the quorum. We certify that the above is a true copy of the original application and order thereon. John J. Prentiss, ThoS. J. Harris, Justices of the peace and of the quorum!’ The copy left with James M. Gates, alleged by the defendant to have been the plaintiff’s attorney, was like the foregoing, except that the word “ oath ” was inserted in the blank, and the names of the justices of the peace and quo-* rum were affixed to the order. The hearing on the petition was adjourned to the 3d day of January, A. D. 1852, at nine o’clock, A. M., at the office of A. B. Williamson, in Claremont, and the certificate of the oath was as follows : “ State of New Hampshire. Sullivan, ss. On the third day of January, A. D. 1852, at nine o’clock in the forenoon, at the office of A. B. Williamson, in Claremont, in said county, William T. Noyes of Claremont, in said county, heretofore a prisoner at the suit of William it. Fernald of Boston, in the county of Suffolk and Commonwealth of Massachusetts, took the oath prescribed by law for the relief of poor debtors; the attorney of the said William R. Fernald, (James M. Gates, Esq.,) having been duly notified, did not attend. Before John J. Prentiss, Thos. J. Harris, Justices of the peace and of the quorum.” The original suit was instituted and prosecuted to final judgment by said Gates and Samuel W. Fuller, then partners, doing business in the name of Gates & Fuller, and said bond, the due execution of which was admitted by the defendant, was also approved by them as the attorneys of said Fernald, who then was, and ever since has been, a resident in Boston, Massachusetts. Prior to the 8th day of December, 1851, the co-partnership of Gates & Fuller had been dissolved, and said Fuller was settled in business in the State of Illinois. The defendant alleged that he could prove that after said notice was given to said Gates as aforesaid, and before the hearing before said justices, said Gates told A. B. Williamson, who was attorney for said William T. Noyes, that he (said Gates) had received a letter from his client (said Fernald) that he should not appear before said justices at said hearing, and should make no objection to said William T. Noyes taking the poor debtor’s oath. All this, however, was denied by the plaintiff, who said he could prove by said Gates that no such conversation ever took place. Such judgment is to be rendered as the foregoing facts will warrant.