May v. Hammond

• Decision Date: 26 February 1887
• Citation: May v. Hammond, 144 Mass. 151, 10 N. E. 751 (Mass. 1887)
• Parties: MAY v. HAMMOND and another.
• Court: Supreme Judicial Court of Massachusetts

144 Mass. 151

10 N.E. 751

MAY v. HAMMOND and another.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1887

COUNSEL

Moulton, Loring & Loring, for plaintiff.

OPINION

For an arrest on mesne process the magistrate need only certify "that he is satisfied that the same is true; i.e., the charge is true." Pub.St. c. 162, §§ 1, 2. The execution in and of itself, authorizes the arrest, unless restrained by statute. The statute, being in restraint of the creditor's right at common law to arrest the judgment debtor, is to be construed with reference to that right; and if, in this case, the statute has been complied with, the restraint ceases, and the arrest is legal. The statute must be construed as a whole, and the evident intention of the law is that arrest for debt both on mesne process and execution shall be prohibited, unless an affidavit containing charges is made, a hearing thereon is had before a proper magistrate and it is proved, to the satisfaction of said magistrate that the affiant believes, and has good reason to believe, said charges. The above is a prohibitory clause. The further provision that "such affidavit, and the certificate," etc., "shall be annexed to the execution," is directory and not prohibitory. It does not come within the clause governed by the word "unless," nor is it named as one of the things without which being done "no person shall be arrested." It is, then, we submit, a direction, and not a prohibition, and therefore a less technical construction should prevail. The true intent of the direction is, it seems to us, that it shall appear upon the officer's precept that the above proceedings have been taken, and a hearing has been held, and a proper magistrate has been satisfied that there is reasonable cause to believe the charges in said affidavit are true. Whether the certificate contains the exact words of the statute, or their equivalent, will satisfy the requirement of the statute. Smith v. Bean, 130 Mass. 299. This case differs from Stone v. Carter, 13 Gray, 575, and other like cases, in that those cases consider the affidavit of the pursuing creditor, and therefore it is reasonable to hold a restricted rule, while this is the act of an impartial magistrate, and therefore a more equitable construction should prevail. The master has certified to more than the law directs, it is true, but the words used were the equivalent of those erased, or included them, as the greater includes the less. Com. v. Baker, 10 Cush. 405; Com. v. Thayer, 8 Metc. 523.

Max Fischacher and S.J. Edler, for Hammond and another.

The fact that the magistrate had the statute language before him, and altered it to something else, indicates that he was unable to certify to what the statute required. It may well have been the case that the magistrate was not satisfied on all the facts in the case. He may have totally disbelieved it; but upon the evidence, if true, he was satisfied. Then it is not his satisfaction that the statute calls for. The certificate is further objectionable because it goes beyond the statute, and finds the defendant guilty before he is heard. The authorities dispose of the case. Stone v. Carter, 13 Gray, 575; Smith v. Bean, 130 Mass. 298. The requirements of the statute must be strictly followed. An affidavit that defendant "intends to leave" is not equivalent to "is likely to remove." Wood v. Melius, 8 Allen, 434.

FIELD J.

The defense in this case is that the recognizance is void because the arrest is said to have been unlawful, for the reason that the certificate...