Poor Debtor, Recognizance. Waiver. Bond, Poor debtor recognizance. Arrest. Jurisdiction. Estoppel.
The illegality of an arrest of an alleged poor debtor on a certificate purporting to authorize arrest under R.L.c. 168, § 20, but issued by a court having no power to do so, is not waived by an application of the person arrested to take the oath for the relief of poor debtors.
Where one arrested on a certificate authorizing arrest, which was issued in a poor debtor proceeding under R.L.c. 168, § 20, is brought into court and enters into a recognizance under § 30, and later, he having observed the formalities of §§ 33, 34, as to giving notice, the judge after a hearing discharges him on the ground that at the time of the issuance of the certificate and of his arrest he was not residing or having a usual place of business in the jurisdiction of the court issuing the certificate, he has performed fully the condition of his recognizance.
One who was a resident and had a usual place of business in Lynn in the county of Essex was described in a writ in the Municipal Court of the City of Boston as having a usual place of business in Boston in the county of Suffolk, appeared and was defaulted, was likewise described in a citation under R.L.c. 168, §§ 17, 18, against him in the same court issuing on a judgment in the former action, appeared in response thereto and after many continuances was finally defaulted, and, a certificate under R.L.c. 168, § 20, authorizing arrest having issued, he was arrested. The questions whether the arrest was illegal, or whether, in an action on a recognizance bond given by him when arrested, he was estopped to deny that he had a usual place of business in Boston where the certificate authorizing arrest issued, were not decided.
HAMMOND, J.
We have not found it necessary to pass upon all the questions raised by the defence. The plaintiff finds himself face to face with a dilemma either horn of which is fatal to his case.
If, as is contended by the defendants, the arrest was illegal, then the recognizance is invalid (Atwood v. Wheeler, 149 Mass. 96), the invalidity was not waived by the application to take the oath for the relief of poor debtors (Smith v. Bean, 130 Mass. 298), and hence the plaintiff has no case.
If, as is contended by the plaintiff, the arrest was legal, then the recognizance was valid. When in accordance with its terms the judgment debtor, after due notice to the judgment creditor, submitted himself to the magistrate and was discharged, he had done all the recognizance required. He had appeared and abided the final order. It is immaterial whether or not the order proceeded from an erroneous view of the law on the part of the magistrate. It was the order of a magistrate having jurisdiction of the subject matter and of the parties, and was the final order which under the terms of the recognizance the debtor was to "abide"; and hence there has been no breach.
The remedy, if any the plaintiff has, is not by a suit upon the recognizance.
Exceptions sustained.