149 Mass. 96 | Mass. | 1889
This is an action upon a .poor debtor recognizance, given under the Pub. Sts. c. 162, § 28. The defendant Wheeler was arrested on an execution dated June 10, 1887. The affidavit required by the Pub. Sts. c. 162, § 17, was to the first charge there specified, that the debtor had property not exempt from being taken on execution, which he did not intend to apply to the plaintiff’s claim. The citation required by § 18 in the case of that charge was issued on June 13, while the affidavit just mentioned was not made until June 17, after the
We see no ground to disturb this finding, so that the only-question is whether the citation was issued without authority and the arrest was illegal, in which case the recognizance is void. Smith v. Bean, 130 Mass. 298. Newmarket National Bank v. Cram, 131 Mass. 204.
It is argued that issuing notice is only a ministerial act, and is shown to be so by the fact that it may be done by justices of the peace, except in the county of Suffolk, although they are denied authority to examine the debtor (§§ 18, 27). The affidavit, on the other hand, it is said, and proving to the satisfaction of the magistrate, as required by § 17, go together, and the affidavit is evidence which does not become important until the time comes to settle the judicial question whether the proof is made out and a certificate authorizing the arrest of the debtor ought to issue.
But even the power to issue notice is confined, by § 18, to magistrates authorized by §§ 17, 1, to issue a certificate authorizing an arrest. Justices of the peace, except in Suffolk, are authorized to issue such a certificate in any case not requiring notice, that is to say, upon any charge except the fii'st, and upon the first if there is an affidavit and proof that there is good reason to believe that the debtor intends to leave the State (§§ 17, 25). Frost's case, 127 Mass. 550, 552. Carleton v. Akron Sewer Pipe Co. 129 Mass. 40, 42. In all these cases their function is judicial, so that the argument based upon their power to issue notice does not amount to much.
On the other hand; a reading of § 17 and the reason of the thing make it very plain that the affidavit is the foundation of the proceedings for arrest after the execution is issued. The affidavit determines what the charge is, and whether notice is necessary. The charge does not exist until the affidavit is ma.de in which it is “ contained,” in the language of § 17. Until the
It is suggested that the papers in Stewart v. Griswold, 134 Mass. 391, disclose that the affidavit in that case was subsequent to the notice. But no such point was taken, or was open upon the report to this court. The ruling of the court below, that the recognizance was invalid, was correct.
Judgment for the defendants.