Stack v. O'brien

• Decision Date: 22 November 1892
• Citation: 157 Mass. 374,32 N.E. 351
• Parties: STACK v. O'BRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 374

32 N.E. 351

STACK v. O'BRIEN.

Supreme Judicial Court of Massachusetts, Berkshire.

November 22, 1892

COUNSEL

J.F. Noxon, for plaintiff.

H.C Joyner, for defendant.

OPINION

MORTON J.

It appears that the recognizance for breach of which this action is brought was taken by a special justice of the district court of central Berkshire. It does not appear from the record that it was taken by him while exercising the powers and duties of the court. Without considering the matter of the notice, we think this is an insuperable objection to the plaintiff's recovery. The Public Statutes (chapter 162, § 27) provided that a poor debtor arrested on execution (and the defendant is to be treated in this case, under the provisions of Pub.St. c. 85, § 20, as one) should be "taken before some judge of a court of record, or of a police, district, or municipal court, or a master in chancery, commissioner in insolvency, or, except in the county of Suffolk, before a trial justice." Under this it was held in Gibbs v. Taylor, 143 Mass. 187 9 N.E. 576, that a special justice of a district court was authorized to take a recognizance from a person arrested on execution at a time when the court was not in session. Chapter 419 of the Acts of 1888 and chapter 415 of the Acts of 1889, however, made important changes in the proceedings under chapter 162, Pub.St., in the cases of persons arrested on execution, and desiring to take the poor debtor's oath. Instead of being taken before some judge of a court of record, or of a police, district, or municipal court, it is provided in section 5, c. 419, Acts 1888, which is amendatory of section 27, c. 162, Pub.St., that he "shall be taken before some court of record, or police, district, or municipal court, or, only if he wishes to recognize, a master in chancery, or, only if he wishes to recognize, a commissioner of insolvency, or, except in the county of Suffolk, a trial justice." This and other provisions of chapter 419, Acts 1888, and chapter 415, Acts 1889, render it apparent that the court as a court is to deal with the matter, and not the person who may hold the office of a judge of the court. Thus section 2, c. 419, Acts 1888, provides that the magistrates or courts before whom the examination named in section 18, c. 162, Pub.St., may be held "shall be some court of record, or police, district, or municipal court, or, except in the county of Suffolk, some trial justice." Section 7 of the same act provides, in amendment of section 31, c. 162, Pub.St., that if the debtor at any time, when entitled thereto, desires to take the oath "and to have a time fixed therefor, some court of record, or police, district, or municipal court, or, except in the county of Suffolk, some trial justice, shall appoint a time and place for his examination, and shall issue a notice thereof to the plaintiff or creditor, signed by said justice of the court or magistrate, and designating his official capacity." So far as this relates to the manner of giving the notice where the court has a clerk and a seal, it has been repealed, in effect, by section 2, c 415, Acts 1889. Section 9, also, of the same chapter provides, in amendment of section 34, c. 162, Pub.St., that "when the notice mentioned in section 31, c. 162, Id., has been duly served, the court or magistrate who issued it, or any court of record, or...