Read v. Dunn

• Decision Date: 07 July 1927
• Docket Number: No. 476.,476.
• Citation: 138 A. 210
• Parties: READ v. DUNN, District Justice.
• Court: Rhode Island Supreme Court

138 A. 210

READ

v. DUNN, District Justice.

No. 476.

Supreme Court of Rhode Island.

July 7, 1927.

Original petition by Albert W. Read for writ of prohibition directed to Louis W. Dunn, as Justice of the District Court of the Eighth Judicial District, restraining him from further proceeding on complaint of Lorenzo Fontaine for benefit of poor debtor's oath. Writ issued.

See, also, 137 A. 9.

Martin F. McGuire, of Providence, for petitioner.

William S. Flynn, of Providence, for respondent.

SWEETLAND, C. J. The above-entitled case is a petition praying for a writ of prohibition restraining the respondent, as justice of the district court of the Eighth judicial district, from proceeding upon the complaint of one Lorenzo Fontaine, wherein said Fontaine requests the privilege and benefit of the poor debtor's oath.

Immediately after hearing the petition, the court in a rescript granted the petitioner's prayer, and ordered a writ of prohibition to issue, returnable forthwith, restraining the respondent in accordance with the prayer of the petition.

For the benefit of practice upon complaints requesting the benefit of the poor debtor's oath we now in this opinion more fully set out the reasons for the determination of the court.

The petitioner, as husband and beneficiary of Agnes Read, deceased, in reliance upon the statute, commenced in the superior court an action of trespass against said Lorenzo Fontaine to recover damages for the death of Agnes Read, alleged to have been caused by the wrongful act of said Fontaine in driving a motor vehicle with great force and violence against Agnes Read, whereby she was severly injured and died on the same day. Upon trial of that cause verdict was rendered against Fontaine in the sum of $3,500. Judgment was entered upon the verdict, execution in arrest was issued against Fontaine, and he was committed to the Providence county jail, where he stood committed at the time of the filing of the petition before us. Upon his commitment Fontaine immediately complained to the respondent justice and requested the privilege and benefit of the poor debtor's oath to which he claimed he was entitled under the statute.

Section 1, c. 377, General Laws 1923, provides that—

"Any person who shall be imprisoned for debt, whether on original writ, mesne process, or execution, * * * may request to be admitted to take the poor debtor's oath."

In the early case of Thompson v. Berry, 5 R. I. 95, it was said that the term "debt" shall receive as liberal a construction as it will reasonably bear. In conformity with this principle of liberality in construction, it appears from the language of Ames, C. J., in Re Payton, 7 R. I. 153, that the notion and practice prevailed that whatever the cause of action, whether ex contractu or ex delicto, it was merged in the judgment, and that every person imprisoned upon execution in civil action was imprisoned for debt. To put a restriction upon that practice a section, now section 10, c. 377, General Laws 1923, was enacted, designed to limit the operation of the first section in that regard. Section 10 provides that a person committed on execution in any one of a number of forms of action therein specified, including "any trespass," except trespass and ejectment and trespass quare clausum fregit, in which title to the close was in dispute, shall not be entitled to apply to take the oath under the provisions of section 1 of the chapter. Under the provisons of section 1, c. 378, General Laws 1923, entitled "Of poor tort debtors," whenever a person shall have been imprisoned for six months upon execution issued out of the superior court in an action of trespass, he shall be entitled, as a poor tort debtor, to petition to take the poor...