May v. Hammond

• Decision Date: 07 March 1888
• Citation: 15 N.E. 925,146 Mass. 439
• Parties: MAY v. HAMMOND et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 439

15 N.E. 925

MAY v. HAMMOND et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1888

COUNSEL

Samuel J. Elder, for defendants.

The facts that a fraud is committed in a proceeding at law, and that the defendant may have an action for malicious prosecution, does not prevent the arrest from being void. Crocker v. Atwood, 144 Mass. 588, 12 N.E. 421. In the present case, the person guilty of the fraud is the one who sets up the recognizance in court, and endeavors to profit by it. It would be an anomaly in law if he could profit by his own fraud. If the arrest is unlawful, the recognizance will be void. McGregor v. Crane, 98 Mass. 530. Is the contingent liability of an indorser a "debt" within the meaning of the fifth clause, § 17, c, 162, Pub.St., under which the defendant was arrested? Some distinction must be drawn, and it is fair to say that the legislature intended to restrict this summary proceeding to those classes of contract where there is a promise to pay money without contingency. In the cases which have arisen under this clause the indebtedness has been of that character. Dow v. Sanborn, 3 Allen, 181; Chamberlin v. Hoogs, 1 Gray, 172; Horton v Weiner, 124 Mass. 92, 93. It is as much within the jurisdiction of the magistrate to entertain a motion for continuance as to examine the debtor, and, having entertained the motion for continuance, he could not default the debtor who came in, pending the discussion of the motion. His statement that he had no jurisdiction did not deprive him of jurisdiction. There was no default except in "the mind" of the magistrate until after the debtor appeared. Mann v. Mirick, 11 Allen, 29; Sweetzer v Eaton, 14 Allen, 157; Turner v. Bartlett, 109 Mass. 503; Pub.St. c. 162, § 18. Parol evidence is admissible to show breach in compliance with recognizance. Peck v. Emery, 1 Allen, 463; Simpson v. Trivett, 120 Mass. 147; Cook v. Thayer, 123 Mass. 333.

Moulton, Loring & Loring, for plaintiff.

An arrest can be made, and legal proceedings could be had, on the execution against defendant Hammond, as well after he went into insolvency as before. Collester v. Hailey, 6 Gray, 519. The recognizance entered into by Hammond was not a debt provable at the time of the first publication of the notice of issuing the warrant of his insolvency, under Pub.St. c. 157, § 26, and was not, therefore, discharged by said Hammond's discharge in insolvency; but, if it was, the surety of said Hammond was not thereby discharged. Smith v. Randall, 1 Allen, 456.

OPINION

C. ALLEN, J.

1. Pub.St. c. 162, § 17, cl. 5, include the liability as indorser of a promissory note.

2. It is true that the statutes do not in express terms require magistrates, who hear applications for the discharge of persons arrested on mesne process and execution, to keep records of their proceedings; but, as they act in a judicial capacity, it is proper for them to keep such records, and such records, when so kept, are to be taken as their official statement of what they have done, and are the proper evidence thereof. And it is competent for such magistrates to amend their...