Opinion · Vtlaw Vermont
GAFFNEY v. COM. OF JAIL DELIVERY, 112 Vt. 438 (1942)
EDWARD J. GAFFNEY v. COMMISSIONERS OF JAIL DELIVERY., 27 A.2d 114 (Supreme Court of Vermont.May Term, 1942. 1942)
- Type
- Opinion
- Court
- Vtlaw Vermont
- Jurisdiction
- Vtlaw
- Date
- 1942-06-24
- Topic
- general
GAFFNEY v. COM. OF JAIL DELIVERY, 112 Vt. 438 (1942) 27 A.2d 114 EDWARD J. GAFFNEY v. COMMISSIONERS OF JAIL DELIVERY.Supreme Court of Vermont.May Term, 1942.
Citator
UpLaw has not yet analyzed GAFFNEY v. COM. OF JAIL DELIVERY, 112 Vt. 438 (1942). The absence of a flag is not a finding that it is good law.
GAFFNEY v. COM. OF JAIL DELIVERY,112 Vt. 438(1942)
27 A.2d 114
EDWARD J. GAFFNEYv.COMMISSIONERS OF JAIL DELIVERY.
Supreme Court of Vermont.
May Term, 1942.
Opinion filed June 24, 1942.
1. After a prisoner has given bond and been admitted to the liberties of the jail yard, he still has the privilege of taking the poor debtor's oath.
2. That P.L. 2226 provides that a prisoner may take the poor debtor's oath or be admitted to the liberties of the jail yard does not mean that the adoption of one course constitutes a binding election.
Present: MOULTON, C.J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is a second petition for a writ of Mandamus to be directed to the commissioners commanding them to admit the relator to the poor debtor's oath and to deliver to him two certificates thereof, and the foregoing facts are set forth therein. As before, though duly summoned and ordered to answer the commissioners have not appeared or answered, and by their failure so to do have directly admitted all traversable allegations of the petition. The attorney of the judgment creditor was notified and has appeared and opposed the granting of the petition.Cannon Warrenv.Norton,16 Vt. 334, presents a situation no different in principle from this one. There, after the prisoner had given bond and been admitted to the liberties of the jail yard, which at that time did not exceed a territory equal to four square miles, R.S. chap. 103, sec. 7, he was permitted to take the benefit of the poor debtor's oath. The enlargement of the limits of the jail yard does not detract from the force of that decision. Although released from jail, the relator must remain within the state under the terms of his bond that he will not escape from the jail yard. P.L. 2199. He is subject to recommitment to jail under the provisions of P.L. 2200, 2201, 2203 and 2205. His liberty is circumscribed. He is still imprisoned within the meaning of P.L. 2208.
The judgment creditor calls attention to the order vacating the close jail certificate and claims that P.L. 2226 directs the court or superior judge to determine the privilege of the poor debtor's oath or the liberties of the jail yard in the alternative, and that relator has made an election. The provisions of the statute mean that, when a close jail certificate is vacated, the execution on which the prisoner is confined in jail is reduced to anyPage 441ordinary body execution, and he is held in jail under the execution as though the certificate had not been indorsed thereon.In re Blake,107 Vt. 18, 24,175 A. 252. There is no alternative in the sense that the relator made a binding election. Because he was erroneously denied the privilege of the poor debtor's oath he had no alternative but to give bond and be admitted to the liberties of the jail yard, if he desired a measure of liberty promptly. Because he availed himself of that privilege does not bar him from now being admitted to the privileges of the poor debtor's oath.Hutchinsv.Tyler,53 Vt. 572, cited by the creditor, is not in point.
It follows that the relator has a clear legal right to be admitted to the poor debtor's oath. A writ of mandamus is a proper remedy to compel obedience to the peremptory terms of the statute under the circumstances.In the Matter of Savage,112 Vt. 89, 94,22 A.2d 153.Let a writ of mandamus issue commanding the Commissioners ofJail Delivery for the County of Rutland forthwith to admit therelator to the poor debtor's oath and to deliver to him twocertificates thereof, in accordance with the provisions of P.L.2216. Let the relator recover his costs.