Kallock v. Elward
| Decision Date | 27 November 1919 |
| Citation | 108 A. 256 |
| Parties | KALLOCK v. ELWARD. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Knox County, at Law.
Action by Cora L. Kallock against Mary Elward, resulting in verdict for plaintiff. Defendant's motion that she and the sureties on her bail bond be exonerated and discharged because she was a married woman, exempt from arrest under the statute, was granted, and plaintiff excepts. Exceptions sustained.
Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ.
Frank H. Ingraham and A. S. Littlefleld, both of Rockland, for plaintiff.
E. C. Payson, of Rockland, for defendant.
This case is before the law court on plaintiff's exceptions to the order of the presiding justice granting the defendant's motion and ordering an exoneretur on a bail bond.
The facts are these: On July 19, 1918, an action was brought by the plaintiff under R. S. c. 66, § 7, to recover damages of the defendant because of her alienation of the affections of the plaintiff's husband. A capias writ was issued returnable at the September term, 1918, of the Supreme Judicial Court for Knox County, and, in accordance with its commands, the defendant was arrested and held to bail in the sum of $8,000. The bail bond was signed by Mary L. Elword, as principal, and C. E. Bicknell and A. B. Crockett as sureties, was accepted by the sheriff, and the defendant was released from custody. The condition of the bail bond was as follows:
"Now therefore if the above-bounden defendant shall appear and answer unto said suit and abide final judgment thereon and not avoid, then this obligation shall be void," etc.
The writ was duly entered at the September term, 1918, the bail bond was filed in court, an attorney appeared for the defendant, and the action was continued to the January term and again to the April term, 1919, when the case was tried and a verdict rendered in favor of the plaintiff. Early in the trial, it appeared, to the suprise of the plaintiff, that the defendant was a married woman, Mrs. Mary L Davis, and that she had held herself out as a single woman on coming to Maine in accordance with a prearranged plan with her husband, who in the meantime had gone to Pennsylvania. The defendant's attorney stated that he had received no information in regard to the marriage until about one month before the trial.
At the same term, after verdict against her and before judgment, the defendant filed a motion asking that she and her sureties on the bail bond be exonerated and discharged because she was a married woman, and under the statutes of this state was exempt from arrest. The presiding justice granted the motion "as a matter of legal right," and to this ruling exceptions were taken by the plaintiff.
The statute in this state granting a married woman exemption from arrest is as follows:
"A husband married since April 26, 1852, is not liable for the debts of his wife contracted before marriage, nor for those contracted afterward in her own name, for any lawful purpose; nor is he liable for her torts committed after April 26, 1883, in which he takes no part; but she is liable in all such cases; a suit may be maintained against her therefor, and her property may be attached and taken on execution for such debts and for damages for such torts, as if she were sole; but she cannot be arrested." R. S. c. 66, § 4.
Exemption from arrest, however, is a personal privilege, and as such may be lost either by waiver or by estoppel.
Thus at common law a party or a witness duly summoned in a process then pending is immune from arrest while in attendance upon court, but the privilege may be waived. Brown v. Getchell, 11 Mass. 11; Smith v. Jones, 76 Me. 138, 49 Am. Rep. 598.
So under the Constitution of Maine, Senators and Representatives, except in certain cases, are privileged from arrest "during their attendance at, going to, and returning from each session of the Legislature." Article 4, pt 3, § 8. And yet it has been held that this privilege, though guaranteed by the organic law of the state, may be waived. The jury found such a waiver in Chase v. Fish, 16 Me. 132, and this court sustained the finding.
In the case at bar the exemption is created by statute, but there is no reason why the doctrines of waiver and estoppel should not apply and work their legitimate effects the same as if the exemption were created at common law or under the Constitution. A statute cannot stand in the way of waiver or equitable estoppel when the facts demand their application in the interest of justice and right. Thus it has been held in an elaborate opinion in which the doctrine is fully discussed that a statute, providing that "no waiver of demand or notice by an indorser of a promissory note is valid unless it is in writing signed by him or his lawful agent," may be waived, or the conduct of the indorser may have been such that he is estopped to set up the statute. Hallowell Bank v. Marston, 85 Me. 488, 27 Atl. 529. "A statutory, or even a constitutional provision, made for one's benefit, is not so sacred that he may not waive it, and having once waived it he is estopped from thereafter claiming it," says the court in that case.
It remains therefore to ascertain whether the conduct of the defendant has been such in this case that she is estopped from now claiming the privilege of immunity from arrest. Has she so acted as to induce the plaintiff, relying upon her acts, to take steps which otherwise he would not have taken, and to change his course to his own disadvantage so that having remained silent when she should have spoken, to allow her now to speak, even to allege and prove the truth, would be contrary to equity and good conscience?
That the defendant was in fact a married woman, Mrs. Mary L. Davis, at the time of her arrest, sufficiently appears from the bill of exceptions. She was masquerading as a single woman under the name of Mary L. Elword, or Mary L. Elward, or Mary Elwood. The reason for this subterfuge is best known to the defendant and her husband, but it is admitted that it was in accordance with a preconcerted plan between them when she came to Maine and he went to Pennsylvania. The plaintiff was therefore justified in suing her as a feme sole and in making the arrest on mesne process. Had she then told the truth, the proceedings would immediately have been dropped, because the object of the service by arrest was undoubtedly to secure if possible a guaranty of the payment of judgment through the sureties on the bail bond, and if she were a married woman so that coverture would prevent the taking of such a bond, it is fair to presume that the unnecessary expense of costs and counsel fees would have been avoided by the plaintiff. The bail bond was supposed to take the place of attached property, and as security for the judgment if one were obtained.
But the defendant did not disclose the true situation, which she knew and which the plaintiff did...
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