Stearns v. Hemenway , 162 Mass. 17 ( 1894 )

Morton, J.

In these two cases the defendants demurred to the declarations. After a full hearing in the Superior Court, the demurrers were overruled, and judgment ordered in each case for the plaintiff for the amount of the recognizance. Thereupon the defendants appealed to this court. The same questions are presented in the two cases, and they were argued together.

1. The defendants object, in the first place, that the declaration does not show that any citation was served upon the principal defendants, either before or after the making of the affidavits, and that the certificates authorizing the arrests and the recognizances were therefore invalid. Copies of the original and alias executions, and of the affidavits and certificates, are annexed to and form parts of the declaration in each case. From these it appears that application for the arrests was made to the Third District Court of Eastern Middlesex for civil business. In the certificates authorizing the arrest it is stated “ that it appears from the evidence, before the said court that said debtor has been duly notified to appear before the said court for examination, as provided in chapter 162 of the Public Statutes and the acts amendatory thereof and supplementary thereto.” This imports.that notice had been given, and must be taken as true. Tracy v. Maloney, 105 Mass. 90.

2. In the next place, the defendants object that the affidavit charges that the debtors jointly have property “ which they do not intend to apply,” etc. But we think the more natural construction is to take the affidavit as if it read, “ that the debtors named in said execution have each property,” etc., and that the words should be regarded as having been used in a distributive sense. We do not mean to intimate that, if the other were the more natural construction, the affidavit would be defective. The execution directs the officer to levy upon “ the goods, chattels, or lands of the said judgment debtors,” but the separate property of either may be taken, showing that there a similar arrangement of words is distributive.

3. The defendants object to the certificate for a reason precisely opposite to that which they urge against the affidavit. They object that the word “ debtor ” is used, and not the word “ debtors,” and contend that it is entirely uncertain which debtor is meant, and whose arrest is authorized. The certificate is to be considered in connection with the affidavit. The "affidavit uses the plural, though, as we have seen, it is to be construed distributively. The first sentence in the certificate sets out that the “ court is satisfied there is reasonable cause to believe that the charges made in the foregoing affidavit are true,” meaning that the charges are true as to each debtor. There is no ground for supposing that the court did not mean the certificate to apply in all its parts to each debtor; and we think it fairly may be construed as if it read that “ each said debtor ” or “ each debtor aforesaid ” “ has been duly notified, . . . and has neglected and refused so to appear.” It is apparent that the error was a clerical one, due probably to the use of printed blanks. This is rendered the more probable from the fact that the same errors occur in both certificates. See Abbott v. Tucker, 4 Allen, 72; Hill v. Bartlett, 124 Mass. 399; Foster v. Leach, 160 Mass. 418.

In Hitchcock v. Baker, 2 Allen, 431, only one defendant was referred to in the affidavit, and it was entirely uncertain which one was meant.

4. The defendants further object that the two principal defendants could not be joined in one citation. We have not been referred to any statute which forbids it, or any authority against its being done, and we discover nothing in the nature of the proceedings which should prevent it. In Pierce v. Phillips, 101 Mass. 313, a citation issued in the name of two judgment debtors to two judgment creditors, and no objection seems to have been taken. We do not see why judgment debtors may not be joined in poor debtor proceedings, as well as in the execution or in the original writ. The rights of the debtors are not prejudiced thereby. Each is served with notice, and the oath is administered or refused, or he is found guilty or not, according as the facts after due examination in his case warrant, and not otherwise.

5. Lastly, it is objected that the recognizances are void because the principal defendants were required to deliver themselves up “ for examination before some magistrate authorized to act,” etc. It is contended that they should have been recognized to deliver themselves up “ before some court of record, or police, district, or municipal court, or, except in the county of Suffolk, before some trial justice.” It is expressly provided in the act amending the Public Statutes that where the word magistrate occurs in any section it shall be construed to mean “ magistrate or court.” St. 1888, c. 419, § 12. The same meaning is to be given to it in these recognizances. They are to be read, therefore, as if they were written, will deliver himself up “ before some court or magistrate authorized to act,” which plainly would be sufficient. The recognizances refer in terms, not only to the public statutes, but to the acts in amendment thereof, and it was the duty of the defendants under the recognizances to deliver themselves up for examination, within the time limited, before some court or magistrate named in the amendatory act of 1888. Thacher v. Williams, 14 Gray, 324. The demurrers admit that they have not done so.

Judgment on the verdict.