State v. Messier , 105 Me. 210 ( 1909 )

Emery, C. J.

A complaint was made in the Lewiston Municipal Court against Arthur Messier for maintaining a liquor nuisance and a' warrant issued against him. Upon this warrant the officer arrested, not Arthur Messier, but another person, Oscar Messier, and brought him, Oscar, before the court for trial. In the Municipal Court, Oscar Messier pleaded not guilty, waived examination, and recognized with sureties for his appearance at the Supreme Judicial Court to answer to the State. He did all this under the name of Arthur Messier, the name in the complaint. In the' Supreme Judicial Court an indictment was returned against Arthur Messier in the same case upon the same facts. Upon[calling Arthur Messier to answer to the indictment and save himself and sureties from default, he did not appear, the recognizance was defaulted, and this writ of “scire facias issued against Arthur Messier and the sureties in the recognizance, and served upon him and them. It is admitted that Arthur Messier at the time of issuing the warrant was not maintaining any .nuisance, had no connection with the place described as a nuisance, but was in Massachusetts during all these proceedings.

It is evident that upon the facts admitted by the State there can be no judgment against Arthur Messier. He did not recognize nor enter into any obligation to appear. Can there be a judgment against the sureties in the recognizance? Not in this suit. They recognized, not with Arthur Messier, but with Oscar Messier and for the latter’s appearance only. They were not the only conusors. Oscar was also a conusor and indeed the principal in the recognizance, He should have been joined in the suit and served with process, with a recital of his alias. For want of such joinder this suit must fail. State v. Chandler, 79 Maine, 172.

Oscar Messier may be guilty of the common law offense of false personation and so not escape punishment, or perhaps he may be arrested and convicted upon the indictment, he having assumed the name of Arthur, but this suit against the real Arthur cannot be maintained, and according to the stipulation there must be,

Judgment for the defendants.