| Me. | Apr 16, 1895
This is an action for an alleged unlawful arrest and false imprisonment.
March 11, 1893, the plaintiff was cited to disclose at Pittsfield in the County of Somerset, on an execution against him for twenty-five dollars and sixty-one cents damages, and ten dollars and twenty-nine cents costs, before the defendant, Davis, as disclosure commissioner, in accordance with the provisions of chapter 137 of the laws" of 1887, but failed to obtain the benefit of the oath provided for in section eight of that Act. Thereupon, May 2,1893, the magistrate appears to have issued a capias and annexed it to the execution in force at that time in accordance with section 20, and on the same day rendered judgment and issued a separate execution against the debtor and in favor of the petitioner for his costs and fees taxed at fifteen dollars and twelve cents, pursuant to section 23, of the same Act. June 19,
The plaintiff now claims that the defendants are liable for an unlawful arrest on the execution for costs, on the ground that it was issued by the disclosure commissioner before the expiration of twenty-four hours from the rendition of the judgment and therefore irregular and void; and secondly, that they are liable for an unlawful arrest on June 21, for the alleged reason that the officer released the debtor after the attempted disclosure of that date and subsequently re-arrested him.
I. It is the opinion of the court that the first ground is indefensible as a matter of law. It was undoubtedly the rule of procedure at common law that execution might issue as soon as final judgment was signed, and before its entry of record "provided there was no writ of error depending or agreement to the
In this State the provisions of the statute, relating to the Supreme Judicial Court and trial justices, authorize the issue of execution twenty-four hours after the rendition of judgment. R. S., c. 82, § 138, and c. 83, § 22. With respect to the former, the general object of the statute was undoubtedly to "give the debtor an opportunity to examine into the correctness of the judgment.” Penniman v. Cole, 8 Met. 496. In the case of trial justices, the obvious purpose was to maintain the consistency of the different provisions of the statute respecting the procedure, and preserve the debtor’s right given by section 18, chapter 83, to enter an appeal from the decision of atrial justice at any time within twenty-four hours after its rendition. Prior to 1871 there seems to have been no express provision of the statute designating the time that must elapse before a justice of the peace or trial justice could issue execution ; but in State v. Hall, 49 Maine, 412, it was declared to be inconsistent for a justice to issue an execution while the right of appeal existed.
The statute authorizing the disclosure commissioner to issue the "separate execution ” for costs under consideration isas follows : " In case said oath is not administered to the debtor, the petitioner shall recover his costs and said fees, as in actions before a trial justice, and the magistrate shall issue a separate execution therefor.” Statute of 1887, c. 137, § 23. This language cannot reasonably be construed to bring disclosure commissioners within the prohibition of the statutes, applicable to trial justices, in regard to the time within which the execution may be issued. It simply provides that the petitioner may
The execution, therefore, appears from the commissioner’s original record to have been regularly and properly issued.
II. The plaintiff’s second contention, that he was released from arrest and subsequently re-ai'restedonthesame execution, is not supported by the tacts. The plaintiff was never committed to jail or actually held in any place of confinement by the officer, but was allowed to remain at home, when not under examination, upon the assurance of his attorney that he would be responsible for him as keeper. No change appears to have been made in this arrangement after the attempted disclosure of June 21st. The officer who was a witness for the plaintiff says he informed the plaintiff of the creditor’s claim that those proceedings were illegal and that he " should have to hold him in custody that he did not discharge the debtor but followed the instructions of Mr. Manson to hold him whether the justices then sitting discharged him or not. But he was allowed to go to his home as before when his presence was not required before the justices. The arrangement for his attorney to act as keeper continued from June 19, until the discharge of the debtor on June 28. There was no second arrest.
Judgment for defendants.