Everett v. Henderson

• Decision Date: 10 January 1888
• Citation: 146 Mass. 89,14 N.E. 932
• Parties: EVERETT v. HENDERSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 89

14 N.E. 932

EVERETT v. HENDERSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1888

COUNSEL

E.M. Bigelow, for plaintiff.

That the affidavit and certificate were correct in point of form and substance, and annexed by a magistrate having jurisdiction to inquire into the matter. Pub.St. c. 162, § 17; Way v. Brigham, 138 Mass. 384; Macaig's Case, 137 Mass. 467; Frost's Case, 127 Mass. 550. That neither the proceedings in insolvency, nor the discharge in insolvency, affected the trial of the charges of fraud whether the discharge exonerated the debtor from his debt or not. Stockwell v. Silloway, 105 Mass. 517, 518; Morse v. Dayton, 125 Mass. 47, 49; Stockwell v Silloway, 100 Mass. 287, 298, at the bottom of the page. That there was a breach of the condition of the recognizance. Hills v. Jones, 122 Mass. 412, and cases; Godfrey v. Munyan, 120 Mass. 240-243, and cases; Morrill v. Norton, 116 Mass. 487, and cases; Thacher v. Williams, 14 Gray, 324. One of the charges of fraud pending at the time of the default was the charge contained in the affidavit, and alleged to have been false. But by the statute the magistrate before whom it was pending had the exclusive original jurisdiction to try its truth or falsity, and it cannot now be known which way he would have decided it. Pub.St. c. 162 § 49; O'Brien v. Barry, 106 Mass. 300, 303, 304; and MORTON, J., and GRAY, J., in Cardival v. Smith, 109 Mass. 158; Bull.N.P. 12; Hamilburgh v. Shepard, 119 Mass. 30; 3 Bl.Comm. 126, note 14, and cases. If he had convicted the debtor, it would have been conclusive evidence of probable cause, even if his judgment were reversed on appeal. Whitney v. Peckham, 15 Mass. 243; Cloon v. Gerry, 13 Gray, 201; Parker v. Huntington, 7 Gray, 36, 2 Gray, 124; Parker v. Farley, 10 Cush. 279. If he had convicted him, and no appeal was taken, or if he was convicted on appeal by the jury, or by the court if trial by jury was waived, the question would have become res adjudicata, and conclusive in all other proceedings. Stockwell v. Silloway, 113 Mass. 384, and cases; Dennis' Case, 110 Mass. 18, 19; GRAY, C.J., in Mowry's Case, 112 Mass. 394, 399. And, the charge being that the debt was contracted with intention not to pay it, such conviction would have been conclusive that the debt was "created by the fraud of the debtor," and so not discharged by the discharge in insolvency. Pub.St. c. 157, § 84; Dow v. Sanborn, 3 Allen, 181; Donaldson v. Farwell, 93 U.S. 631, 633, and cases; Wilmot v. Mudge, 103 U.S. 217, affirming 124 Mass. 493; Kellogg v. Kimball, 138 Mass. 441. And in such case the discharge in insolvency would be no bar to an action upon the recognizance, even if no charges of fraud had been made or filed or were pending. Smith v. Randall, 1 Allen, 456. Thus, by the default of the debtor, the creditor has been deprived not only of his legal right to have the truth or falsity of his charge tried by the tribunal specially created and appointed by the statute to try the same, but also of all these incidental advantages accruing from such a trial. There is no similitude or analogy between the present case and that large class of cases where the forms of the law have not been pursued, and where the arrest is a trespass and false imprisonment, and where any deed, bond, recognizance, or other instrument executed would be void for duress. Such was Shattuck v. Bill, 142 Mass. 56, 7 N.E. 43, and cases cited at top of page 59 by counsel; Hitchcock v. Baker, 2 Allen, 431; Cody v. Adams, 7 Gray, 59. Nor is there any likeness between it and that other large class of cases where the forms of the law, civil or criminal, though regular, have been abused to extort from the defendant some deed, release, or other instrument foreign to the case. Here, all parties guilty of the abuse become, by theory or fiction of the law, trespassers ab initio, and the instrument void for duress. Brown v. Pierce, 7 Wall. 215, and cases; Wood v. Graves, 144 Mass. 365, 11 N.E. 567, and cases. See this theory or fiction fully and clearly expounded and explained, and so applied as to enable the plaintiff to maintain his action, though commenced fully two months before he had any cause of action at all, in McGough v. Wellington, 6 Allen, 505, 507, 508, per HOAR, J. If, instead of forfeiting his recognizance, the debtor had defended the charges to a successful termination, and been acquitted, it is certain that his only remedy would have been an action upon the case for malicious arrest and prosecution. Marks v. Townsend, 97 N.Y. 590, and cases reviewed; Hayden v. Shed, 11 Mass. 500; and JACKSON, J., in Coupal v. Ward, 106 Mass. 289; Mullen v. Brown, 138 Mass. 114; Cassier v. Fales, 139 Mass. 461, 1 N.E. 920, and cases. The distinction between these cases is stated summa cum elegantia by Lord MANSFIELD and Lord LOUGHBOROUGH: "An action of trespass is for the defendant's having done that which, upon the stating of it, is manifestly illegal; the other is for a prosecution which, upon the stating of it, is manifestly legal." Johnstone v. Sutton, 1 Term R. 544; affirmed in House of Lords, Id. 784. The legality of the proceedings is essential to the maintenance of an action for malicious prosecution. Whiting v. Johnson, 6 Gray, 246, 247, THOMAS, J. It will hardly be contended that by forfeiting his recognizance, the debtor has placed himself in a better position than if the trial had proceeded, and he had been acquitted. If he can maintain an action for a malicious arrest and prosecution, he has an adequate remedy for the damage he has sustained; if he cannot, it is because of his own default. It was the plain intent of the legislature that, after charges of fraud are filed, the debtor should stand a trial until he is either acquitted or convicted, "or pay to the creditor the whole amount of the original judgment against him." Pub.St. c. 162, § 51; GRAY, C.J., in Mowry's Case, 112 Mass. 400; Tracy v. Preble, 117 Mass. 4, 5; Moore v. Loring, 106 Mass. 455, 457. Pub.St. c. 162, § 51, carefully preserves to him the right he has had all along to remove the whole foundation of the proceedings by payment of the amount in money, and thus escape punishment; that such payment in money removes the foundation, and extinguishes the judgment as effectually as if it were reversed on writ of error or review. Holmes v. Day, 108 Mass. 563, and cases; Bank v. Hunnewell, 124 Mass. 260; Whitton v. Bicknell, 3 Allen, 473. This was the locus poenitentioe which the legislature gave him when it originally introduced these charges, instead of that suggested by the commissioners in their notes to Rev.St. c. 98. But a certificate in insolvency or bankruptcy exonerating him from the debt is not "paying" the whole amount of the judgment within the meaning of Pub.St. c. 162, § 51. When the recognizance is forfeited, the execution is functus officio, and no action can be maintained upon the judgment; but the only remedy is by an action upon the recognizance, to be brought within one year after breach. Pub.St. c. 162, § 64; Coburn v. Palmer, 10 Cush. 273; Kennedy v. Duncklee, 1 Gray, 65; HOAR, J., in Whitton v. Bicknell, 3 Allen, 473; CHAPMAN, J., in Brown v. Kendall, 8 Allen, 210; FOSTER, J., in Merrill v. Roulstone, 14 Allen, 511, 514; Morgan v. Curley, 142 Mass. 107, 7 N.E. 726. If the sureties are worthless, as is generally the case, and the creditor desires to pursue the game further, he must file an affidavit or complaint alleging that the default was willful, upon which there issues a warrant, called in Rev.St. c. 98, § 37, "a writ for his arrest," to bring the debtor before the magistrate or court to try that issue; and if he is found guilty, the game is at an end. If he is found guilty and sentenced to hard labor in the house of correction, or to the county jail, a mittimus issues. And then the remedies upon the original judgment revive, and the game may commence anew, if the creditor desires, and the debt is not otherwise discharged. That the epithets or elements of "willful and corrupt perjury," etc., add nothing to the case. Phelps v. Stearns, 4 Gray, 105; Parker v. Huntington, 7 Gray, 36, 37, ad finem. That the court erred in refusing to let the plaintiff state all his reasons for believing the charge true. Bacon v. Towne, 4 Cush. 217, 238-241.

Ely, Gates & Keyes, for defendants.

Where the arrest is illegal, the recognizance is void, and the illegality of the arrest is not waived by the debtor appearing and submitting to an examination before the magistrate. McGregor v. Crane, 98 Mass. 530; Carleton v. Sewer-Pipe Co., 129 Mass. 40; Smith v. Bean, 130 Mass. 298; Learnard v. Bailey, 111 Mass. 160. The facts disclosed by this case show a malicious prosecution, or a wanton and malicious abuse of legal process on the part of the plaintiff, and would clearly sustain an action by E.P. Henderson against the plaintiff. Legallee v. Blaisdell, 134 Mass. 473; Luce v. Dexter, 135 Mass. 23; Savage v. Brewer, 16 Pick. 453; Hayden v. Shed, 11 Mass. 500; Watkins v Baird, 6 Mass. 506. But the remedy in such cases is not solely by an action of tort for a malicious prosecution. Crocker v. Atwood, 144 Mass. 588, 12 N.E. 421. It is submitted that the certificate of the magistrate annexed to the affidavit, made solely ex parte, and without any notice to the debtor, E.P. Henderson, is not a judgment; but, even if it were a judgment, it is not conclusive, and can be impeached by allegation and proof that it was procured by fraud and perjury, and especially by the surety on the recognizance. Baker v. Moffat, 7 Cush. 259; Heard v. Lodge, 20 Pick. 53; Vose v. Morton, 4 Cush. 27; Downs v. Fuller, 2 Metc. 135; Laflin v. Field, 6 Metc. 287; Tracy v. Goodwin, 5 Allen, 409; Tracy v. Maloney, 105 Mass. 90; Way v. Lewis, 115 Mass. 26;...