McPheters v. Morrill
| Decision Date | 11 January 1877 |
| Citation | 66 Me. 123 |
| Parties | WILLIAM MCPHETERS, petitioner for certiorari, v. JOSIAH MORRILL. 1876. |
| Court | Maine Supreme Court |
ON REPORT.
PETITION for certiorari to quash the record of magistrates sitting to hear a poor debtor's disclosure.
C. A Bailey, for the petitioner.
It is alleged in the petition that the person named as respondent was arrested on an execution in favor of the petitioner on the 15th day of October, 1874, and failing to give bond was committed to jail; that on the 27th of November he notified his creditor, the petitioner here, that he would submit himself to examination before two justices of the peace and quorum at the jail on the 30th of said November, when, after a disclosure before two justices duly selected he was permitted to take the poor debtor's oath, and was discharged, " although your petitioner then and there protested against such discharge, setting forth as his objection thereto the following: that before said debtor could lawfully be discharged, he must pay the expense of his keeping fro the time of his arrest until his disclosure as prescribed in R. S., c. 113, §§ 21, 22; but said justices overruled said objection, and permitted said debtor to go at large without paying the jailor for keeping him from the time of his commitment to the time of his disclosure, whereby your petitioner was obliged to pay the same and was thereby greatly damaged." The party named as respondent not appearing, though notified, the case is reported by the judge sitting at nisi prius to be determined by this court upon the facts stated in the petition.
We think the position which the petitioner took before the magistrates was legally correct. The date of the notice shows that the proceedings must have been under and by virtue of §§ 21 and 22, c. 113; and § 22 peremptorily requires that the debtor " besides the other fees, shall pay the jailor's fees before he can be discharged." There can be no doubt that this includes compensation for the support of the prisoner while he is in the custody of the jailor. R. S., c. 116, § 9, expressly includes the sum to be received " for the entire support of each prisoner of every description" among the fees which he may lawfully tax. This section comes in part from § 1, c. 284, Laws of 1865, which runs thus: the jailor's fees in the different counties of the state for the entire support of each prisoner …. shall be," & c. The word " fees" in these sections is used as synonymous with, and signifies the same as, " charges" in c. 126, Laws of 1862. No change was intended in the revision.
If the debtor prefers to go to jail rather than give bond, or disclose while in the custody of the officer making the arrest, he must pay the sum to which the jailor is entitled for his support as well as other legal charges, before he can rightfully claim to be discharged. But it does not follow that the writ should issue, as prayed for, because of this irregularity in the proceedings of the magistrates. Several difficulties are obvious.
The query suggested by the court in Pike v. Herriman, 39 Me. 52; and Ross v. Ellsworth, 49 Me. 417; whether under existing statutes regulating their proceedings a writ of certiorari can ever issue in these cases has never been favorably answered in any case to which our attention has been called. Furbush v. Cunningham, 56 Me. 184, 186.
Again supposing this doubt favorably solved; while we think that the debtor, whose liability to future arrest for the same debts is involved, ought to be made a party, we think that the magistrates whose record is brought in question should also be made parties. Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 563. This has heretofore always been done. See cases above cited, and those therein referred to. Moreover it was expressly held in Pike v. Herriman, and Ross v. Ellsworth, upi supra, that the writ prayed for can present the record only and nothing dehors the record can be proved by the petitioner. The record is not before us; probably because the magistrates are not made parties respondent.
But aside from all this, " the facts stated in the petition" give us no legal assurance that the petitioner was injured by the error into which the magistrates fell. It is true the petitioner asserts that he was thereby obliged to pay his debtor's board in jail; but...
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Civil Costs: Adrift and Untethered from Common Law
...not include attorneys' fees, because "costs" used in the statute means taxable costs as ordinarily taxed."); but see McPheters v. Morrill, 66 Me. 123, 124 (1877) ("The word "fees" in these sections [R.S., c. 113, §§21-2 and R.S., c. 116, §9] is used synonymous with, and signifies the same a......