Wing v. Hussey

• Decision Date: 27 May 1880
• Citation: Wing v. Hussey, 71 Me. 185 (Me. 1880)
• Parties: DANIEL WING v. C. WALTER HUSSEY.
• Court: Maine Supreme Court

71 Me. 185

DANIEL WING v. C. WALTER HUSSEY.

Supreme Judicial Court of Maine.

May 27, 1880

ON REPORT from superior court, Kennebec county.

TRESPASS for causing the arrest and imprisonment of the plaintiff. Date of writ, October 2, 1878. From the report it appears that July 12, 1878, Arabella Stratton, Adm'x, obtained judgment against this plaintiff before Mark Rollins, trial justice, for twenty dollars and costs; an execution was issued on that judgment, July 15, 1878, and delivered that day or the next, by the magistrate to Llewellyn Libbey deputy sheriff, at the request of this defendant, who acted for Arabella Stratton, and directed the officer to arrest the plaintiff in this suit. Arabella Stratton died July 21, 1878. The plaintiff was arrested by the officer on the execution July 27, 1878, and committed to Augusta jail, July 31, 1878 and was dircharged therefrom on habeas corpus, August 9, 1878. The law court are to render such judgment in the case, as the law and evidence require.

Baker & Baker, for the plaintiff.

The arrest of plaintiff was unlawful. Stat. 1821, c. 63, § 1 shows that such an execution can only be served where there is a living creditor. It provides " for want of goods, chattels, and lands of the said debtor, to be by him shown unto you or found within your precinct to the acceptance of said creditor, & c.. . detain in your custody within our said jail until he pay … or that he be discharged by said creditor or otherwise by order of law. R. S., c. 113, § § 21, 26, 27, require the citation for poor debtor's disclosure, to be served on the creditor; the provision of § 27, for service upon the attorney of record is nugatory, for the moment a party dies the authority of his attorney ceases. 1 Pars. Contr. 71; 1 Am. Lead. Cas. 712; Gleason v. Dodd, Adm'r, 4 Met. 333.

The rule laid down by Freeman on Executions, § 37, that at common law, an execution issued before the death of the creditor could be served after, does not seem to be supported in its full scope by the authorities cited. There are so many qualifications and exceptions, it is not safe to adopt the rule as a whole. See 6 Mod. 290; 11 Mod. 35; 7 T. R. 20; Comm v. Whitney, 10 Pick. 434; Beeker v. Beeker, 47 Barb. 498; Ellis v. Griffith, 16 Mees. & W. 105; Gaston v. White, 46 Mo. 486; Magoun v. McCoy's Ex. 2 B. & M. 198; Huey's Adm'r v. Reddin's heirs, 3 Dana 488.

But our chief answer to this rule is, that it is not adapted to our statutes, and is in conflict with the rights of debtors as secured and established by the laws of this State.

This defendant was a stranger. He is not a member of the bar. Whatever authority he had from Mrs. Stratton died with her. Without a shadow of interest or right, he caused the arrest of the plaintiff, and if the arrest was valid, it is no justification to him. Dicey on Parties, 432-3.

S. S. Brown, for the defendant.

LIBBEY J.

The great question involved in this case, is: Whether an execution issued and put into the hands of an officer for service during the life of the plaintiff in the execution, is abated by his death before service.

At common law, the rule is well settled that the death of the plaintiff does not abate the execution, and that it is the duty of the officer to serve it. A return by him of the death of the plaintiff is a bad return. Cleve v. Veer, Cro. Car. 459; Thoroughgood's Case, Noy, 73; Ellis v. Griffith, 16 Mees. & W. 106; Comm. v. Whitney, 10 Pick. 434; Murray v. Buchanan, 7 Blackf. 549; Freeman on Executions, § 37, and cases there cited.

In Ellis v. Griffith, 16 M. & W. 106, decided in 1846, POLLOCK, C. B., says:--" It appears from the case of Cleve v. Veer, that so far back as the reign of Charles I, CROKE, J., thus laid down the law:--‘ There is a difference betwixt a judicial writ after judgment to do execution and a writ original; for the writ judicial to make execution, shall not abate, nor is abatable by the death of him who sues it; as it is, the common course of a capias ad satisfaciendum or fieri facias, upon judgment issueth, the sheriff shall execute it, although the party who sued it, died before the return of the writ; and though the death be before or after the execution, if it be after the teste of the writ, it is well enough; as where a capias ad satisfaciendum is sued, and the party taken before or after the death of him who sued it, and before the day of the return; or if a fieri facias be awarded, and the money levied by the sheriff, and the plaintiff dies before the day of the return of the writ, yet the executor or his administrator shall have the benefit, and is to have the money, and it is no return for the sheriff to say that the plaintiff is dead; and therefore he did not execute it.’ I believe that ever since that time, the administration of justice has proceeded on that principle, and that this dictum of CROKE, J., has been acted on in hundreds of instances. It is said that there are dicta somewhere else, which may affect the question, and it is suggested also, that perhaps some inconvenience may ensue from keeping this person in custody; but the inconvenience which was pointed out by Mr. Martin, namely, that where a defendant is taken in execution after the death of the plaintiff, there is no person to whom the money may be paid, is an inconvenience which, on principle, would call for our interference just as much in the case where the arrest of the defendant is made before the death of the plaintiff, who dies immediately after the arrest. I am therefore quite content to abide by so old a dictum as that of CROKE, J., and which has been so continually acted on." PARKE, ALDERSON and ROLFE, Barons, concurred.

But it is claimed by the plaintiff's counsel, that this rule of the common law has been changed by the provisions of our statutes, and is not law in this State. If it is found to be clearly inconsistent with the provisions of our statu...