Brazill v. Green

• Citation: 236 Mass. 93,127 N.E. 535
• Parties: BRAZILL v. GREEN et al.
• Decision Date: 22 May 1920
• Court: United States State Supreme Judicial Court of Massachusetts

236 Mass. 93

127 N.E. 535

BRAZILL

v.GREEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1920.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Peter E. Brazill against George W. Green and others. Verdict for plaintiff, and defendants except. Exceptions sustained.

Daniel B. Beard, of Boston, for defendant Green.

John Louis Sheehan, of Boston, for defendant McCarthy.

JENNEY, J.

In this action on a recognizance entered into by George W. Green as principal and John J. McCarthy as surety, under R. L. c. 168, § 30, the defendants claim that the directed verdict for the plaintiff ought not to stand. They base their objections thereto on the officer's return on the execution hereinafter referred to, on the absence of evidence of any breach of the recognizance, and on the exclusion of evidence relating to the interest of the plaintiff in the proceedings in which the recognizance was given.

[1] The exception to the admission of the execution, of the officer's return thereon, and of the certificate of the master in chancery as to the recognizance is not argued, and is considered as waived. See concerning the questions involved in the admission of this evidence, Peck v. Emery, 1 Allen, 463;Blake v. Mehan, 2 Allen, 75;Damon v. Carrol, 163 Mass. 404, 40 N. E. 185;Bent v. Stone, 184 Mass. 92, 68 N. E. 46;Warburton v. Gourse, 193 Mass. 203, 79 N. E. 270.

1. It is claimed that the officer's return shows no legal arrest of the defendant Green, and that the recognizance is void for that reason. The execution was issued in an action of tort; therefore no preliminary affidavit and certificate were necessary. R. L. c. 168, § 17. The execution, which is in the usual form, commands the officer, ‘of the goods, chattels, or lands of the said judgment debtor, within your precinct, you cause to be paid and satisfied’ the amount payable thereunder, the ‘for want of goods and chattels, or lands of the said judgment debtor, to be by him shown unto you, or found within your precinct. * * * We command you to take the body of the said judgment debtor. * * *’ The officer's return does not show any demand for payment on Green or any failure on his part to satisfy the execution or expose ‘goods, chattels, or lands' to be applied in payment thereof. An officer, having in his hands an execution authorizing the arrest of a judgment debtor, is not obliged before making an arrest thereon to demand payment, or to search for property on which to levy the execution. It is provided in R. L. c. 177, § 28:

‘If an execution is in the alternative, so that it may be lawfully served in any of two or more ways, the creditor or his attorney may require the officer to serve it in any of said ways; and the officer shall conform to such directions if it is in his power.’

In Dooley v. Cotton, 3 Gray, 496, at page 497, it was said:

‘That our process of writ of execution being in the alternative, to take either goods and chattels, or lands, or the body of the debtor, either of the three modes may be selected by the creditor, or by the sheriff, with the privity or subsequent assent of the creditor, has been long sanctioned by practice, and good authority. Lyman v. Lyman, 11 Mass. 317;Woodward v. Hopkins, 2 Gray, 213. It seems also to be sanctioned by the express provisions of the Rev. Sts. c. 97, § 12.’

In Webber v. Davis, 5 Allen, 393, at page 397, this court said:

‘The defendants objected that the officer's return on the execution did not state that he had made any search for the goods, chattels and lands of Davis within his precinct, or that he was directed to arreat the body of Davis. No authority is cited in support of this objection, and the want of such search, or of directions from the plaintiff, could not make the arrest illegal. An execution had been put into his hands, having upon it a certificate such as the statute requires to authorize the arrest of the defendant, and that was sufficient.’

See, also, Hoar v. Tilden, 178 Mass. 157, 59 N. E. 641.

The only intimation to the contrary is found in O'Brien v. Annis, 120 Mass. 143, where the question involved was whether a constable had so far proceeded in the service of an execution as to justify him in continuing to act thereunder after his term of office had expired, and where at page 145 of 120 Mass. it was said:

‘The execution delivered to him was only to be served by arrest of the person for want of goods, effects or credits to be exhibited by the trustees, and for want of property of the principal defendant which he could find.’

The statute, and the cases from which quotations have been made, were not referred to, and the broad language used cannot be construed as an attempt to overrule the cases or limit the statute. The case is authority for the proposition that a demand on a trustee named in an execution and a diligent search for goods and effects of the principal defendant are a commencement of its service. Even if not necessary, such proceedings were proper, and such a demand on a trustee is necessary in order to protect fully the rights of a judgment creditor. R. L. c. 189, §§ 40, 41. See Swan v. Justices of the Superior Court, 222 Mass. 542, 545, 111 N. E. 386.

2. A verdict should have been ordered...