Smith v. Bean

130 Mass. 298 | Mass. | 1881

Soule, J.

The defendant’s principal was arrested on execution, at the request of the plaintiff, on the first charge specified in the Gen. Sts. a. 124, § 5. Until the magistrate is satisfied that there is reasonable cause to believe that such charge is true, the statute gives him no power to authorize an arrest. The certificates on the execution are the only sources of evidence that the preliminary steps have all been properly taken, and that the arrest when made is duly authorized. The execution on which Kendall, the defendant’s principal, was arrested, did not bear any certificate of the magistrate that the magistrate was satisfied thac there was reasonable cause to believe that the charge on which the arrest was asked for was true. His certificate said nothing about this, but merely recited that, “ satisfactory cause having been shown,” he authorized the arrest. This statement is not equivalent to what the statute calls for. The papers must show affirmatively and directly that the requirements of the statute have been complied with. It is not enough that the certificate makes statements from which it may be reasonably or probably inferred that what the statute requires has been done. The debtor is entitled to freedom from arrest till the proper officer comes to him armed with a precept which shows clearly and un equivocally that the creditor has done all that is incumbent on him to obtain authority to arrest him, and has obtained that authority and proposes to execute it. The arrest of Kendall having been made without authority of law, the recognizance which he and the defendant entered into in consequence of it was void; and the ruling that the plaintiff could not maintain his action was correct. Learnard v. Bailey, 111 Mass. 160.

Exceptions overruled.