William P. Webster vs. Elias S. French & others, 11 Cush. 304

Dewey, J. It is well settled that any irregularity in the preliminary proceedings may be shown to avoid the discharge of a debtor committed on execution, upon taking the poor debtors’ oath under the provisions of the Rev.” Sts. c. 98. By the first

section of this act, it is provided “ that when any person who is committed on execution for debt, shall represent to the jailer that he is unable to pay the debt for which he is imprisoned, and is desirous to take the benefit of the law for the relief of poor debtors, the jailer shall make known the same to some justice of the peace.” The entire proceedings in this case being before us, it is at once seen that the representation of the debtor which is the foundation for all the subsequent proceedings, was not conformable to the statute.

It does not appear that the debtor represented to the jailer that he was unable to pay the debt for which he was imprisoned. This allegation must be substantially made. It need not be in the precise words of the statute, but it must be language equivalent to it. The only representation here made was that the debtor was desirous of taking the oath prescribed in

chapter ninety-eight of the Revised Statutes. Upon this ground the court are of opinion that the preliminary proceedings were defective, and the discharge was invalid. Exceptions overruled.