196 Mass. 21 | Mass. | 1907
This was a hearing upon a writ of habeas corpus. The single justice, under the R. L. c. 156, § 7, reserved for the full court the question of law whether the facts set forth in the petition for the writ, and in the return, would entitle the petitioner to be discharged.
The prisoner was arrested on mesne process upon a writ and affidavit, in perfect form, in which the declaration is upon a judgment against the respondent, recovered in the Superior Court. One matter stated in the petition, on which the petitioner relies for his discharge, is that the service upon the original writ on which the judgment is founded was insufficient, inasmuch as he was not a resident of this Commonwealth, and had no last and usual place of abode therein, and there was no personal service upon him. He says, therefore, that the judgment is void. If the facts are as stated, they will enable the respondent to defend successfully against the suit when the case comes to trial, for he may plead the prior lack of jurisdiction directly against an action founded on such a judgment, without resort to a writ of error. Eliot v. McCormick, 144 Mass. 10. Needham v. Thayer, 147 Mass. 536. But the fact that he has a good defence against the suit cannot be set up to relieve him
If an execution had been issued on the judgment which is declared on in this writ and the petitioner had been arrested upon it, a very different question would have arisen. An execution is a process that has no validity apart from the judgment which it is issued to enforce, and the judgment debtor, if arrested, may set up on habeas corpus that the judgment and execution were not merely voidable, but wholly void. Sennott’s case, ubi supra. A writ in an action of contract stands differently. It rests for its validity upon the jurisdiction of the court to summon the defendant to come in and answer to the claim made against him, and upon the additional jurisdiction to give the plaintiff security for such final judgment as he may recover by an attachment of property or an arrest of the person. The validity of the attachment or of the arrest does not depend upon the question whether the plaintiff’s cause of action is valid or void. The jurisdiction is complete, and the process is legal, and the attachment or arrest remains in force until it is determined whether the defendant is indebted as averred.
This claim is squarely met by the decision in Jewett v. Locke, 6 Gray, 233, which holds that a plaintiff, acting in good faith, and with no intention to oppress the defendant, may, on finding that the bail taken in a civil action is insufficient, discontinue the action, and arrest the defendant again on a second writ for the same cause of action. .
The petitioner relies upon R. L. c. 168, § 45, which gives to a person discharged on taking the oath after an arrest on mesne process the same advantage of exemption from a second arrest, for the same cause of action, that one has who has been discharged after an arrest on execution. But this section applies only to a discharge on taking the oath for the relief of poor debtors, and it has no relevancy when there is a voluntary discharge, or a discharge after taking the oath that the defendant does not intend to leave the State.
Prisoner remanded.