Bramhall v. Seavey , 28 Me. 45 ( 1848 )

Shepley J.

— This suit is upon a bond, executed to relieve the principal, from an arrest on mesne process. Debtors by contract are liable to be arrested on such process in this State, only upon affidavit made by the creditor, his agent or attorney, before a justice of the peace, to be certified on the process, that he has reason to believe and does believe, that such debt- or is about to depart and reside beyond the limits of the State, with property or means exceeding the amount required for his own immediate support, and to. take with, him property or means as aforesaid, and that the demand in the process, or the principal part thereof, amounting to at least ten dollars, is due to him.

The'affidavit upon the writ, by virtue of which the principal was arrested, is defective by omitting to state, that the debtor was about “ to take with him property or means as aforesaid that is, property or means, exceeding the amount required for his own immediate support. Rev. Stat. c. 148, § 2. The word “ with,” used in the following extract, from the statute, “ when he is about to depart, and reside beyond the limits of this State, with property or means,” must have been used in the sense of having or owning property or means, and not as indicating, that he was about to take his property with him, beyond the limits of the' State. This is apparent from the subsequent provision in the same section, requiring, that the oath should state, not only, that he had property or means, but also, that he was about to take such property or means with him, beyond the limits of the State. It does not appear to have been the intention of the Legislature, that such a debtor, having property and being about to depart and reside without the limits of the State, should be liable to arrest on mesne process,, if he did not take his property or means with him, but left it within the State and subject to legal process.

The affidavit appears to have been made in the County of Suffolk, and Commonwealth of Massachusetts, before a person, who signs the certificate, and indicates the capacity in which he acted, by the words “justice of the peace for said County of Suffolk.” The statute requires, that the oath should be made “ before a justice of the peace.” The question arises, whether such language can be considered as conferring any authority upon officers or persons not recognized by the laws of this State, as holding the office of justice of the peace ?

All legislation is obligatory only within the limits of the sovereignty, by which it is enacted. This is a position equally consonant to reason, and established upon authority. Bank of Augusta v. Earle, 13 Peters, 519; Miller v. Ewer, 27 Maine R. 509. No legislative body can bo presumed therefore, to intend by the use of language without limitation, to bind or to confer any authority upon persons not within its jurisdiction. By the use of the terms, executors, administrators and guardians, in the framing of statutes, those persons only can be intended, who are recognized by the laws of the state as clothed with such capacity. So also by the use of the terms, judges of probate, registers of probate, clerks of courts, county commissioners, and justices of the peace, those persons only, who bear that official capacity by the laws of this State, can be intended, although there may be official persons with like designations in other States. One sovereignty may by its enactments, expressly authorize individuals, or those bearing a certain official character and designated by their official titles, residing within the limits of another sovereignty, to do certain acts, and may make those acts effectual within its own sovereignty.

Examples of such legislation will be found in the Revised Statutes of this State, in c. 133, § 14 and 22, authorizing a justice of the peace or notary public to take depositions out of the State, to be used in the tribunals within it. And in c. 91, § 17, authorizing the acknowledgment of deeds to be taken out of the State, by certain official persons, and making them effectual within the State. It is only, when the legislation of the State expressly or by necessary implication, grants the authority, that persons bearing without the limits of this State, an official character, can perform any official act, to be effectual by the laws of this State. Justices of the peace in another State, can derive no power from the laws of the State, where they reside, to perform any official act to be operative in this State.

The.case of Omealy v. Newell, 8 East, 364, is not opposed to these positions. It appears from that case, that the justices of the courts of king’s bench and common pleas, according to the course and practice of those courts, had been long accustomed to make orders, that certain debtors should be held to bail for certain amounts. That for this purpose they had received affidavits made before magistrates residing in foreign countries ; and verified as to the signature of the foreign magistrate as his authority to administer the oath by an affidavit made in England. The court decided, that this practice existing without any statute provisions, was not prohibited by the statute 12 Geo. I. c. 29, which required that the plaintiff should in certain cases, make an affidavit before a judge or commissioner, to authorize him to cause his debtor to be arrested. The case does not decide, that an affidavit required by statute could be effectual, if made before a foreign magistrate. The reverse is fairly to be inferred. The practice of the courts, founded, as Lord Ellenborough states, upon any such medium of evidence or information, as the courts might judge to be reasonable, did not sanction such a proceeding, without having an accompanying affidavit made in England, which upon being found to be false, might be a foundation for the punishment of the guilty party.

If the affidavit made upon the writ, by virtue of which the principal in this bond was arrested, should be proved to be false, the person who made it without the jurisdiction of this State, and before a magistrate residing there, could not be punished by the laws of this State.

The arrest of the principal must therefore, be considered as made without the affidavit required by the statute, and without the authority of law. The arrest being unlawful, the bond executed to obtain his release, must be considered as obtained by duress, and no action can be maintained upon it. Whitefield v. Longfellow, 13 Maine R. 146; Commonwealth v. Canada, 13 Pick. 86 ; Woolley v. Escudier, 2 Moore and Scott, 392.

According to an agreement of the parties, a nonsuit is to be entered.