Paine v. Kelley , 197 Mass. 22 ( 1907 )

Braley, J.

If the plaintiff’s arrest and subsequent imprisonment at the procurement of the defendant were justified, because in accordance with due course of law, the first ruling requested should have been granted. The plaintiff, who was domiciled in another State, so long as he remained there was not amenable to civil process issued in this jurisdiction. If, however, he voluntarily came here, then, even if a non-resident, as the alleged contract. upon which the action is brought followed his person, he became subject to our laws for the collection of debts, and not only could a valid service be made upon him, but any personal property in his possession subject to attachment might be seized, or he could be arrested and held to bail. Barrell v. Benjamin, 15 Mass. 354. Peabody v. Hamilton, 106 Mass. 217. But, before his body could be lawfully taken, there must be a strict compliance with the provisions of R. L. c. 168, § 1, which are not to be extended by construction, as the debtor is coerced by the penalty of imprisonment to make payment of his debt. Under the statute, the only ground upon which an arrest on mesne process can be authorized by the magistrate to whom the creditor or some one in his behalf applies, is, that the debtor “ intends to leave the Commonwealth so that execution, if obtained, cannot be served upon him.” The magistrate must determine upon evidence submitted to him whether there is satisfactory proof of this jurisdictional requirement before he lawfully can grant the certificate, and, although upon their face the proceedings may appear to be regular, yet the debtor, who has been forcibly detained thereunder, may show in an independent suit that the affidavit and certificate in fact were false. If this is found, then, the authority to arrest having been wrongly procured by the creditor, the arrest which follows is unlawful.

In order to have an intention “ to leave the Commonwealth ” within the meaning of the statute, the plaintiff first must have been bodily within its borders. He undoubtedly may have had a fixed purpose upon departure from home to return when the journey had been completed, but such intention could not ripen into a legal cause for his detention in a foreign jurisdiction, until the law of the forum had attached. In other words, as any interference with the plaintiff’s right to personal liberty, which included his freedom of movement from place to place at will, was unjustifiable without the statutory certificate, so his apprehension and confinement, where upon the evidence the certificate could be found void because issued at a time when the magistrate had no jurisdiction of his person, affords no justification to the defendant by whom it was procured, and who directed the arrest. Cody v. Adams, 7 Gray, 59. Winslow v. Hathaway, 1 Pick. 210. Clark v. Ward, 7 Gray, 409. Tellefsen v. Fee, 168 Mass. 188. Stephens v. Wilkins, 6 Penn. St. 260.

But, distinct from any claim to redress arising from false imprisonment, the plaintiff put his right to recover upon the further ground that, even if it could have been found that he had arrived before the magistrate acted, his presence was involuntary. If, as alleged, he was induced by the false pretences of the defendant to come here with the purpose upon arrival of placing him under arrest, then he was not present of his own volition, but had attended under duress, because of the fraud practised upon him. The defendant, if found to have successfully pursued this policy, cannot be permitted under the formal guise of regularity of the proceedings to escape liability for tbis wrong, as such a result would confer upon him a benefit directly derived from an abuse of legal process, which the courts will not sanction. Sweet v. Kimball, 166 Mass. 332. Wood v. Wood, 78 Ky. 624. Hill v. Goodrich, 32 Conn. 588. Wanzer v. Bright, 52 Ill. 35. Stein v. Valkenhuysen, E., B. & E. 65.

It is now said that the count is bad for duplicity. This defence, however, comes too late, as, no demurrer having been interposed, the defendant answered and went to trial on the merits under a declaration which ambiguously set forth both causes of action. Cronan v. Woburn, 185 Mass. 91, 95.

The evidence being conflicting, the questions involved properly were left to the jury under suitable instructions. In submitting the measure of damages they were instructed that, while exemplary, or punitive, damages could not be awarded, the plaintiff could recover reasonable compensation for such mental distress and physical discomfort as he was shown to have suffered. These instructions were correct. Derry v. Flitner, 118 Mass. 131, 134. Cook v. Brown, 125 Mass. 503. Flynn v. Butler, 189 Mass. 377, 388. Sweet v. Kimball, ubi supra. Bennett v. Sweet, 171 Mass. 600, 601.

Exceptions overruled.