Henshaw v. Cotton

• Decision Date: 24 June 1879
• Citation: 127 Mass. 60
• Parties: Edward Henshaw v. Joseph H. Cotton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 60

Edward Henshaw v. Joseph H. Cotton

Supreme Court of Massachusetts

June 24, 1879

Suffolk. Petition for a writ of prohibition to restrain a master in chancery from proceeding to hear the application of M. F. Paige, a debtor arrested on mesne process, to take the oath that he did not intend to leave the state.

At the hearing before Endicott, J., it appeared that Paige was arrested on January 2, 1879, on a writ in an action of contract, in which the petitioner was plaintiff, and was taken before a magistrate, before whom he declared that he did not desire to take any oath, or to recognize or give bail for his appearance at any time; and he was accordingly committed to jail. On January 9, 1879, Paige applied to another magistrate to take the oath that he did not at the time of his arrest and at the date of the application intend to leave the state, and also to take the oath for the relief of poor debtors. That magistrate refused to discharge Paige on the ground that he did at the time of his arrest and at the time of his examination intend to leave the state. On January 25, 1879, Paige applied to the respondent to take an oath that "he does not intend to leave this state." At the time and place appointed for the hearing, the petitioner appeared specially, and objected to the respondent hearing the evidence and passing on the application of Paige on the ground that the subject-matter thereof had been already determined. The respondent heard the parties, and decided that Paige was not estopped by the previous finding from applying to take the oath; and proceeded to hear the testimony, and was conducting the hearing up to the time of the filing of this petition.

The judge ruled that the respondent did not have jurisdiction to hear and determine Paige's application; and that a writ of prohibition was the proper remedy; and reported the case for the determination of the full court. If the rulings were correct, the writ was to issue; otherwise, the petition to be dismissed.

Writ of prohibition to issue.

E Avery & G. M. Hobbs, (E. M. Johnson with them,) for the respondent, cited Gen. Sts. c. 124, §§ 5, 12, 14, 17, 18, 23, 25, 26, 48; Sts. 1872, c. 281; 1873, c. 352; Sweeney v. Gillooly, 103 Mass. 549; Perry v. Perry, 2 Gray 326; Hayward, petitioner, 10 Pick. 358; Washburn v. Phillips, 2 Met. 299; Wertheimer v. Mayor, &c. of Boonville, 29 Misso. 254; Wilson v. Berkstresser, 45 Misso. 283; Browne v. Rowe, 10 Tex. 183; High on Extraordinary Remedies, 557.

M. F. Dickinson, Jr. & J. Fox, for the petitioner.

Gray C. J. Ames & Lord, JJ., absent.

OPINION

Gray C. J.

In order to warrant an arrest on mesne process in an action of contract, it is only necessary that the plaintiff, or some one in his behalf, should make affidavit of, and prove to the satisfaction of a magistrate, certain facts as to the plaintiff's cause of action and the defendant's property, and "that he believes, and has reason to believe, that the defendant intends to leave the state, so that execution, if obtained, cannot be served upon him." Gen. Sts. c. 124, § 1. The defendant, when so arrested, must be taken before a magistrate, who, if the defendant wishes it, is to issue notice to the plaintiff that the defendant desires to take the oath for the relief of poor debtors, or an oath that he does not intend to leave the state, or both these oaths; §§ 9, 12; and if the defendant "has given notice that he desires to take an oath that he does not intend to leave the state, he shall be examined in relation thereto, and any legal and pertinent evidence may be introduced by either party. If the magistrate is satisfied that the defendant did not when arrested, and does not at the time of examination, intend to leave the state, he shall make certificate thereof, and discharge the defendant from arrest." § 18.

It will be observed, that, although the notice issued is of the defendant's desire to take an oath that he "does not" intend to leave the state, the magistrate, in order to discharge him from arrest, must be satisfied, not only that he does not at the time of examination, but that he "did not when arrested," intend to leave the state. The obvious purpose of this provision is, that, as the affidavit and proof that the defendant at the time of his arrest intends to leave the state, on which the arrest is made, are ex parte, the defendant shall have an opportunity to be heard and offer evidence upon the issue so presented by the plaintiff's affidavit. When that...