Grimes v. Briggs , 110 Mass. 446 ( 1872 )

Ames, J.

Upon the facts stated in the bill of exceptions, it must be inferred that Harlow was not subjected to any unlawful or improper duress. The plaintiffs, as judgment creditors, having an execution against him, had a right to cause him to be arrested, and also had a right, upon proper notice of his application as a poor debtor to be discharged from such arrest, to appear upon his examination and to oppose his discharge. It cannot be said that by accepting payment or security for the debt, and thereupon allowing or ordering his discharge, they were guilty of any abuse of legal process. There was no threat to make use of criminal process in order to enforce the collection of a debt, and no attempt to use the execution for any purpose other than the collection of the specific debt for which it was issued, and in the mode prescribed in its terms. In this respect the case is distinguishable from Hackett v. King, 6 Allen, 58.

The plaintiffs’ waiver of all objection to the defendant’s discharge from arrest was a sufficient consideration for the assignment. It was a concession on their part, and was beneficial to the debtor. The conveyance was sufficient to pass the debtor’s title to the property, and gave the plaintiffs a right of immediate possession. The evidence of demand and refusal was sufficient to make out a conversion against a party who, as we must infer from the verdict, failed to prove title in himself. As the writ was made provisionally, to be used only in case of refusal by the defendant to give up the property, the suit was not prematurely brought. Badger v. Phinney, 15 Mass. 859. Seaver v. Lincoln, 21 Pick. 267. Federhen v. Smith, 3 Allen, 119. We find no error in any of the rulings of the court, and therefore the

Exceptions are overruled.