Brayman v. Whitcomb
| Decision Date | 02 March 1883 |
| Citation | 134 Mass. 525 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | W. H. H. Brayman & another v. Joseph Whitcomb |
Argued November 14, 1882
Barnstable. Tort, against a deputy of the sheriff of Barnstable, for releasing and discharging, within thirty days after judgment for the plaintiffs in an action brought by them against Isaac. H. Fish, certain goods from an attachment made by the defendant on the writ in said action. Trial in the Superior Court, without a jury, before Brigham, C. J who found and ordered judgment for the plaintiffs; and the defendant alleged exceptions. The facts appear in the opinion.
Exceptions overruled.
J. M Day, for the defendant.
H. P. Harriman, for the plaintiffs.
C. Allen, J. W. Allen & Holmes, JJ., absent.
The execution, in favor of Charles A. Raymond, upon which the defendant sold the goods, upon a seizure made previous to the attachment thereof upon the process sued out by the plaintiffs, issued upon a recognizance taken before a justice of the peace, by virtue of the Gen. Sts. c. 152, § 7. As the authority of the justice of the peace to take such a recognizance is to do so "in any case where it might be taken before the clerk of the court," we are necessarily referred to § 2. This section, so far as it is important to the present inquiry, is as follows: "The recognizance may be taken before the Superior Court in any county in term time, or before the clerk of the court in vacation." Upon the facts found, the Superior Court was not in actual session on Saturday, the day when the recognizance was taken, having adjourned from Friday to Monday, but not having adjourned the term without day. In the statute, the word "vacation" is used in contradistinction to "term time;" indicating an intention to use it in its legal sense. The English legal year was divided into four terms of different lengths, separated by the vacations, which were the seasons of the great festivals or fasts, or were deemed necessary on account of the avocations of rural business. And in this country courts have their terms and vacations. Bronson v. Schulten, 104 U.S. 410, 415. The legal definition of the word "vacation" is that period of time between the end of one term and the beginning of another. Bouvier's Law Dict. We are to consider the Legislature, when dealing with subjects relating to courts and legal process, as speaking technically, unless from the statute itself it appears that they made use of words in a more popular sense. Merchants Bank v. Cook, 4 Pick. 405, 411. The intervals of time between the actual sessions of court when conducting the business of a term cannot be called vacations, and, as there was a present existing term of the Superior Court, no authority existed to take the recognizance in question.
The execution which issued upon the recognizance was therefore void. It issued from a magistrate having no jurisdiction, and it did not recite any facts which purported to show that he had such jurisdiction. The act of the officer in selling the goods was a trespass,...
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