A Justice of the Peace cannot issue a second citation for an imprisoned debtor to his committing creditor, unless on proof of some change of circumstances satisfactory to him. But the mode of proof is not specified by the statute; the justice issuing the citation is to judge of its sufficiency. The creditor, on the hearing before two justices, has a right to be heard on the question whether there has been a change of circumstances, and to take their opinion upon it. The statute (Revised Statutes, chap. 198, § 17) does not require that the justice shall recite the proof in the second citation, or state in so many words that a change of circumstances has been proved, but merely that he shall recite the change itself. Taking the oath and executing an assignment under the Poor Debtors Act, constitutes a change of circumstances, such as the law requires to justify the issuing of a second citation.
POTTER, J.
The second citation in this case recites, (after referring to the first citation,) that the prisoner had "undergone a change of circumstances in this, that since said refusal, said petitioner has taken the oath under the poor debtor's act and made an assignment according to the statute in such case made and provided." It is objected, first, that the citation contains no evidence that any proof of change of circumstances was submitted to the justice; and, second, that the facts recited do not constitute a sufficient change of circumstances.
By the statute, the debtor is not to be entitled to a second citation "unless on proof of some change of circumstances after the taking out of the first citation; which change of circumstances shall be annexed to or recited in, the second citation, and form a part thereof."
The justice is not to issue a second citation, unless on proof of some change of circumstances. The proof, heard as it is, ex parte, must be satisfactory to him. But the mode of proof is not specified; the justice is to judge of its sufficiency. And it has always been considered that the creditor, upon the hearing before the two justices, has a right to a hearing on this question, whether there has been a change of circumstances, and to take their opinion upon it.
In regard to the recital, the justice has done all that the statute requires. It does not require that he shall recite the proof, or state in so many words that it has been proved; but merely that he shall recite the change of circumstances.
In regard to the other point, whether the facts stated constitute a sufficient change of circumstances, we are of opinion, that an assignment executed under the poor debtors act would constitute a change of circumstances, such as the law requires to justify the issuing of a second citation.
Judgment for defendants.