Gibbs v. Taylor

• Decision Date: 05 January 1887
• Citation: 143 Mass. 187,9 N.E. 576
• Parties: GIBBS v. TAYLOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 187

9 N.E. 576

GIBBS v. TAYLOR.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1887

COUNSEL

E.L. Barney, for defendant.

The arrest of Rodolphus J. Croacher upon the execution in this case was wrong. The execution authorizing the defendant's arrest was without authority. Pub.St.Mass. c. 166, §§ 6, 7. If the execution was authorized to be issued, there was no authority in law for the arrest of Croacher upon it without an affidavit. Pub.St.Mass. c. 162, § 5. The recognizance showed no authority in Special Justice Milliken to take it. This was bad, and no suit can be maintained upon such a recognizance. Tarbell v. Gray, 4 Gray, 444; Patterson v. Goldsmith, 9 Gray, 258; Pierce v Gray, 11 Gray, 377. It is not a question of pleadings. The court ruled that there "was no need of authority to be set forth in said recognizance of his authority to act in the matter." This was wrong. See cases above cited.

W.C Parker, for plaintiff.

The execution was properly issued against the administrator personally; judgment having been obtained against him as administrator for debt and costs, and this execution being for the costs. Pub.St.Mass. c. 166, § 8. No affidavit was necessary to authorize the arrest; the execution being for costs only, and running "against the goods, estate, and body of the administrator as if it were for his own debt." See statutes cited; also Pub.St.Mass. c. 162, § 5. No special instruction to the officer to arrest was necessary. Webber v. Davis, 5 Allen, 393, 397; Dooley v. Cotton, 3 Gray, 496. A special justice of a district court "is, in every sense, a judge thereof," (Com. v. Hawkes, 123 Mass. 525 529;) and may take a poor debtor's recognizance as a magistrate acting in the performance of a ministerial act under authority of said section 27. Clement v. Sargent, 100 Mass. 300. And such act would not be an act of the court, but of a public officer designated in common with other officers who have no courts, such as masters in chancery and commissioners of insolvency. Pub.St.Mass. c. 162, § 27; Underwood v. Clements, 16 Gray, 169. Not being a contract, but one which might be done by any one of several public officers, it could be performed at Milliken's office or elsewhere, and while the court was not in session. Dike v. Story, 7 Allen, 349; Underwood v. Clements, supra.

OPINION

HOLMES J.

The execution for costs was properly issued against the administrator personally. Pub.St. c. 166, § 8; Look v. Luce, 136 Mass. 249. And no affidavit being required to justify an arrest upon it, (Pub.St. c. 162, § 5,) it warranted the arrest without special instructions, ( Webber v. Davis, 5 Allen, 393, 397; Dooley v. Cotton, 3 Gray, 496.)

It was held in Dike v. Story, 7 Allen, 349, that a special justice could take a recognizance under Gen.St. c. 124, §§ 9 10, (Pub.St. c. 162, §§ 27, 28,) and that he could do it at other times than the regularly appointed sessions of the court. In that case, it is true, there was a disability of the justice, but we are of opinion that the authority of the special justice is not dependent upon that circumstance, or upon the provisions of Pub.St. c. 154, § 25, (Gen.St. c. 116, § 22,) as to holding court. The power is conferred, not upon the court, but upon some judge of the court, along-side of other...