Commonwealth v. Whitney , 27 Mass. 442 ( 1830 )

Shaw C. J.

delivered the opinion of the Court. This is certainly a question of considerable intrinsic difficulty, involving questions of great importance, and it is to be regretted that we are obliged to hear it on a summary process, and without notice to those interested. It has been ably argued for the prisoner, but the argument was necessarily ex parte. The case proceeds on the ground that the plaintiff in the execution is deceased, and the affidavits show that no will has yet been proved, and no letters of administration issued ; and although we ordered notice to the attorney of record, by whom the suit was brought and judgment recovered for the plaintiff, yet he has not appeared, and according to the argument for the prisoner, as attorney and constituent are correlative, by the death of the constituent the authority of the attorney is at an end, so that in truth there is no one, who can represent the interest of the creditor.¹

The facts shown by the return are, that the judgment was rendered on the 4th of September, execution issued on the 10th, the plaintiff died on the 3d of October and the prisoner was committed on the 11th. It does not appear, whether the execution was in the hands of the officer for service, prior to the death of the plaintiff, or not. If the execution had been delivered to the officer, for the purpose of making the arrest, and he were to arrest the prisoner, without notice of the death of the plaintiff, it would be strange to say that an act which he was bound to do, in the regular discharge of his duty to the creditor, as an officer, should render him liable, for false imprisonment. It is the right of bail to surrender his principal to an officer holding the execution ; would this right be defeated by the death of the plaintiff, and could not the officer hold the prisoner in custody, upon such surrender ? These questions present difficulties, not being provided for by any rule of law or provision of statute.

The argument drawn from the form of the execution and from the statutes, is certainly very forcible, that the execution is provisional, the debtor to remain in prison till he be discharged by the creditor, or by order of law ; and the statutes all presuppose the creditor to be capable of acting and having notice.

But the difficulty with this argument is, that it would seem equally to require the prison doors tó be thrown open immediately on the death of the plaintiff, although the prisoner were committed in his lifetime. Suppose the case is a lawful commitment, for a large amount, and on the day after the commitment, and before any notice is issued, the plaintiff dies. There is no longer any creditor by whom the prisoner can be discharged, the authority of his attorney is at an end, he neither lives within the Commonwealth nor without the Commonwealth, no notice can be given to him, he can give no security for the prisoner’s support, some time must be taken either to prove a will or take administration, and in the mean time, although the sheriff was right in committing, the jailer has no longer any power to detain the prisoner, and he must go at large. And even if the notices had been given before the death of the plaintiff, and no administrator appointed before the day fixed for administering the oath, the case would not be free from difficulty. The statute certainly contemplates, that the creditor, or his executor or administrator, may be present if he sees cause. Could the prisoner be admitted to his oath, when it is impossible for any one representing the interest secured by the judgment and execution to be present ?

But yet it is impossible to imagine that the legislature, who have shown so much solicitude to provide effectually for the relief and discharge of poor and insolvent debtors, should have contemplated, that a debtor should be subjected to an indefinite imprisonment, when no administration is taken out on the estate of his creditor, or where it is long delayed by controverted claims to administration. We can only consider, that being a case of rare occurrence, it has been overlooked and unprovided for by statute.

The Court are not prepared to say that the imprisonment was unlawful, so as to entitle the prisoner to his discharge forthwith, as a matter of right, but if it was, he has his remedy by writ of audita querela, in which the facts could be put in issue and the rights of the parties more regularly settled. Lovejoy v. Webber, 10 Mass. R. 101. But it is readily perceived that it might be a case of great hardship, should an unreasonable time elapse, after the death of a creditor, and no administrator be appointed, and may require an extraordinary remedy.

But the right to a discharge as a poor prisoner, depends upon statute, and the existing provisions of the statute do not reach such a case ; and the Court cannot know and have no means of knowing, that the prisoner is poor, or insolvent, or unable to pay the debt for which he stands committed.

The writ of habeas corpus is a summary process ; the power given by it, is to be exercised under a sound discretion, and with reference to all the circumstances of the case. The proceeding at present, is of necessity ex parte. No unreasonable time has yet elapsed since the death of the creditor, for the appointment and qualification of an administrator. Whatever claims the prisoner might have to the extraordinary interposition of the power of the Court for his relief under other circumstances, we do not at present perceive sufficient ground upon which to discharge him from his imprisonment, on this process.¹

Prisoner remanded.

1 See Revised Stat. c. 98, § 3.