Smith v. Bean
| Decision Date | 21 February 1881 |
| Citation | 130 Mass. 298 |
| Parties | Norman Smith v. Stephen J. Bean |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued October 6, 1880
Worcester. Contract upon a poor debtor's recognizance entered into on December 31, 1878, under the Gen. Sts. c 124, § 10, by Charles A. Kendall as principal, and the defendant as surety, and containing the usual conditions.
At the trial in the Superior Court, before Dewey, J., without a jury, it appeared in evidence that the plaintiff obtained an execution in due form in an action of contract against Kendall; that one McIlvene, in behalf of the plaintiff, made a certificate on the execution that there remained uncollected on the execution the sum of twenty dollars exclusive of all costs, and that he believed and had good cause to believe that the judgment debtor had property not exempt from being taken on execution which he did not intend to apply to the payment of the plaintiff's claim; that a justice of the peace thereupon issued to Kendall a notice in due form, under the St. of 1877, c. 250, to appear before him for examination, which was duly served upon Kendall and returned to the justice; that Kendall failed to appear for examination, and thereupon the justice made a certificate upon the execution, setting forth the application for the arrest of the debtor upon the first charge specified in the Gen. Sts. c. 124, § 5, the issuing and service of the notice, the failure of the debtor to appear for examination and that, "satisfactory cause having been shown, I hereby authorize the arrest of the said debtor if his arrest is authorized by law;" that, by virtue of the execution and the certificates thereon, Kendall was arrested and brought before the justice, and entered into the recognizance in suit; that Kendall applied to a magistrate to take the oath for the relief of poor debtors; that the magistrate issued a notice to the creditor of Kendall's application; and that, at the time the notice was returnable, the creditor and Kendall appeared before the magistrate, and the hearing was continued until a subsequent time, when Kendall failed to appear.
Upon these facts, the judge ruled that the plaintiff could not maintain his action; and found for the defendant. The plaintiff alleged exceptions.
Exceptions overruled.
J. E. Day, for the plaintiff.
F. T. Blackmer & M. H. Cowden, for the defendant.
OPINION
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Everett v. Henderson
... ... Pub.St. c. 162, ... § 49; O'Brien v. Barry, 106 Mass. 300, 303, 304; ... and MORTON, J., and GRAY, J., in Cardival v. Smith, ... 109 Mass. 158; Bull.N.P. 12; Hamilburgh v. Shepard, ... 119 Mass. 30; 3 Bl.Comm. 126, note 14, and cases. If he had ... convicted the ... magistrate. McGregor v. Crane, 98 Mass. 530; ... Carleton v. Sewer-Pipe Co., 129 Mass. 40; Smith ... v. Bean, 130 Mass. 298; Learnard v. Bailey, 111 ... Mass. 160. The facts disclosed by this case show a malicious ... prosecution, or a wanton and ... ...
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Washington Nat. Bank v. Williams
...the execution are void, the arrest was illegal, and the defendant cannot be held on his recognizance. Penniman v. Cole, ubi supra; Smith v. Bean, 130 Mass. 298;Newmarket National Bank v. Cram, 131 Mass. 204;Atwood v. Wheeler, 149 Mass. 96, 21 N. E. 232. It is conceded by the plaintiff that,......
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Simmons v. Richards
... ... surety upon the recognizance might have maintained his ... defense, when sued upon it. Smith v. Bean, 130 Mass ... 298. But no facts appear of record showing that the second ... arrest was illegal. The officer's return upon the ... ...
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Washington Nat. Bank v. Williams
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