Marsh v. Bancroft , 42 Mass. 497 ( 1840 )

Dewey, J.

An officer receiving a writ, that authorizes an airest of the defendant, with directions to make such arrest, and having actually made it, is bound to commit to prison, or to take good and sufficient bail; and in case of his. failure so to do, he is responsible to the creditor for all damages that may have accrued thereby. The evidence in this case shows an actual arrest of the debtor, and a return by the officer, indorsed on the writ, that the debtor had given bail. An instrument, purporting to be a bail bond in the case, was in fact returned by the officer; but it also appears that the signatures of the sureties in said bond were forgeries.

The duty of taking good and sufficient bail necessarily imposes upon the officer the responsibility of taking a valid bond; and the genuineness of the signatures of the obligors is at his risk. The creditor has no participation in the execution of such bond.

It being conceded that no proper bond was taken, and that the responsibility for this neglect, if any damage had ensued, would devolve upon the officer, the defendant then relies on the position, that the plaintiff delivered no sufficient process to him to authorize an arrest and impose upon him the duty of obtaining good and sufficient bail; and that if a bail bond had been taken, it would, under the circumstances of the case, have been invalid and ineffectual as a security for the creditor.

If the original process was illegal, or if it was so defective that a scire facias could not have been maintained on any bail bond that might have been taken, then no action could be sustained against the officer for not taking bail; because the party, in whose favor the process issued, has suffered no injury by the neglect complained of. Was the process, placed in the hands of the defendant, a sufficient and proper one to authorize an arrest and holding to bail ? The objections to it arise under the provisions of St. 1834, c. 167, (like Rev. Sts. c. 90, § 111,) wherein it is enacted “that from and after the fourth day of July next, no person shall be arrested, held to bail, or imprisoned on mesne process for any debt or demand contracted subsequently to that day, unless the plaintiff, or some one of the plaintiffs, or his or their agent, shall make oath before some justice of the peace, that he has a claim against the debtor or debtors, which he believes to be justly due, and on which he expects to recover the sum of ten dollars or upwards ; and that he has reasonable cause to believe that the defendant, for the purpose of avoiding the payment of a just demand, intends to leave, and remain beyond the jurisdiction of the court having cognizance of the suit, so that he cannot be arrested on an execution which may issue on a judgment in said suit.” It is not denied, that this oath, in proper and apt words, was duly taken before the service of the process by the defendant; but it is urged that the evidence of the taking of such oath was not properly authenticated, before the service of the writ. If the certificate of such oath was required to be indorsed on the back of the writ, under the hand óf the magistrate, before the arrest was authorized, then clearly the present certificate would be insufficient, as it should have stated the facts to which the party or his agent made oath, and not “ that he made oath as the law requires to authorize the arrest of the defendant.” But the weakness of the defence is found in this, that the statute does not require any certificate of the oath to be indorsed on the writ, but leaves the fact of the taking of the proper oath to be shown by evidence aliunde. The insufficiency of the certificate indorsed on the writ does not therefore invalidate the process, nor excuse the officer from taking bail, if the proper oath was in fact previously administered ; and, as it seems to us, it is competent to prove this fact by other evidence. Such evidence would not be contradictory to the certificate already appearing in the case, but would supply the defects in it, and bring the case within the provisions of the statute.

Judgment on the verdict