Commonwealth v. Sumner

22 Mass. 360

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1827
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. By the return of the officer to the writ of habeas corpus, it appeal s that Nazro was arrested on the process attached to the return, in which bail to the^ amount of 10,000 dollars was required, and that he was committed to prison and is now held by virtue of such arrest. The process on which he was arrested is in the form of a writ of attachment or capias, in which is inserted a bill in equity setting forth a copartnership heretofore existing Detween the plaintiff’s intestate, the defendant in the suit, and one Brice, in the island of Hayti or St. Domingo, and the advance of funds, to a certain amount, towards the joint stock, and praying for an injunction against the defendant in the suit against collecting the debts due to the company, for the appointment of a receiver, for an account, &c. The bill is founded upon St. 1823, c. 140. The question before us is, whether in virtue of this statute, or the statute of 1817, c. 87, the party against whom a suit in equity is instituted, can lawfully be arrested and held to bail, or be imprisoned for failing to give bail. It seems to be admitted, and justly, that without the provision in the first section of the statute of 1817, for the insertion of a bill or complaint in a writ of attachment, the process in a suit in equity would be by subposna only, as in chancery suits in England, unless the Court, pursuant to the authority given by the same statute, shall have prescribed some other form of process. Had the statute omitted to prescribe any form of process, or to give any authority to the Court to make one, the bill as used in England in chancery proceedings, and the proceedings under it as there practised, would necessarily have been adopted here, for it would be presumed that the legislature having given jurisdiction, intended it should be exercised according to the most approved forms in that country, which had been the source from which this and other States in the union had derived their principles and practice in the administration of justice ; and it was without doubt expected that the Court here, on prescribing writs and processes to carry into execution this new jurisdiction, would conform to those which had been established in England, as near as would be consistent with that prompt administration of justice which it was desirable to attain. But the right and privilege were secured to the complaining party, to insert his complaint in a common writ of attachment; and it was provided that such a writ should be served in the same manner as other writs of attachment were served ; and it is difficult to imagine why this provision was made, unless to enable the party to obtain security by attachment of property at least, and if this were the intent, it is not easy to see why the alternative of holding to bail, in case there is a failure of property, should not apply in this case, as well as in attach inents in common law suits. We agree with the plaintiff in the suit, that there is no distinction in our statutes between a capias and writ of attachment; they are one writ with different powers, according to the will of him who uses them.

In a case therefore accruing under the statute of 1817 where the complaint should be inserted in such a writ, the argument would be very strong in favor of an arrest and holding to bail, notwithstanding the extreme inconvenience of adopting such a procedure in regard to some of the subjects of equity jurisdiction given by this statute. And indeed we wish to reserve ourselves upon this question, when we consider the obvious inapplicability of an arrest and bail upon a bill praying for a specific performance of a contract, for we cannot discern how the bail could be charged with the judgment or decree in such a case ; certainly they could be liable for nothing beyond the costs of such a suit. In regard to some trusts which are the subjects of like jurisdiction by the statute, the difficulty of charging bail would be not less glaring. And it may be found in some future case, that the inapplicability of bail to such subjects, and in relation to those which are provided for in the statute of 1798, c. 77, is so apparent as to require an opinion, that the legislature intend such a construction of the terms by which they authorize the insertion. But however this may be, we think the question now before us is to be settled upon quite different considerations. This suit, upon which Nazro was arrested, is founded entirely upon the statute of 1823. That statute is perfect in itself, and may he executed without reference to the statute of 1817. It would be perfect and complete as an act of legislation, if the statute of 1817 had never been passed. It states distinctly, in two sections, the subjects of jurisdiction, and in a third, gives to the Court authority to issue all such writs and processes as may be necessary or proper to carry into full effect the powers granted. If the Court should not have executed this power by prescribing suitable writs and processes, a hill according to forms approved in England and in other States in this country could have been sustained, so that the object of the legislature in pvsing this statute could have been carried into effect without the aid of the statute of 1817. And it would seem that such was the intent of the legislature ; for how otherwise can it be accounted for, that power was given to the Court to issue writs, &c., when a similar power was given in the previous statute in the same words ? It is true this act is entitled an act in addition to an act for giving further remedies in equity ; but this expresses nothing more than that this act was part of the same system of jurisprudence, the act itself to which this is supposed to refer not being the onginal of the series, but referring by implication to the statute of 1798 ; for the act of 1817 is entitled an act for giving further remedies in equity. Although it is certainly correctly stated, that for the purpose of exposition and argument these several statutes may be taken together, and considered as one, they being as to the general subject of jurisdiction in pari materia, we think it does not follow that independent provisions of any one section are to be applied to all other sections, where the object of the enactment can be obtained without the aid of such application. Take for instance the first section in St. 1823, c. 140. It provides that in all cases where any goods or chattels, deed, bond, note, bill, specialty, writing, or other personal property of any person or persons shall be taken or detained, &c., so that the same cannot be found, or come at, to be replevied, the justices &c., on application by bill, petition or complaint, may order the same to be delivered up, or compel such discoveries and disclosures and make such orders, injunctions and decrees, and upon such terms and conditions, as equity shall in such cases seem to require. Now can it be supposed that the legislature intended, that a bill founded on this section should be inserted in a writ of attachment which should be served by arresting the body of the party complained against and holding him to bail ? We think this could not be pretended, and yet a case arising under this section cannot be distinguished from one arising undsr the next section relating to partnerships. In either case there certainly is no necessity, and probably there was no intention, of referring to the statute of 1817 for the form of the process.

The argument m favor of the arrest would have more force, "f the legislature, by the statute of 1817, had given general jurisdiction to the Court in matters of equity, and afterwards had given specific power in cases supposed not to be within the general authority. But it should be considered, that by that first statute the chancery jurisdiction of this Court is limited to cases of trust arising in three particular modes, and to cases of contract in writing where a party prays for a specific execution of the contract. And the provision of the statute is, that in such cases, that is, in cases of trusts and written contracts, the bill or complaint may be inserted in a writ, and served, &c. Here by the very words of the statute is a limitation of the privilege of converting a bill in equity into a capias or attachment; and it cannot be successfully argued, that a subsequent statute which extended the jurisdiction to other subjects, and which provided the means of its own execution, is to be modified by this, which gives a novel mode of process in the specific cases to which alone it refers. Possibly under the authority given to the Court to issue such writs and processes as may be necessary and proper to execute the power given them, they might adopt this process, if they thought it a suitable one ; but considering that by the rules adopted in reference to chancery jurisdiction, the subpoena is established as the proper process, except in cases where the legislature have authorized a writ of attachment, and as that is not directly authorized in this statute, we should not incline to depart from the approved forms of chancery proceeding ; and particularly in a case where the liberty of the defendant seems to be essential to the interests of all the parties concerned in the copartnership.

It has been said, that in a suit at common law, on the same subject matter, the plaintiff in the suit may have bis capias and arrest the defendant. This we do not deny, but it furnishes no reason for extending this power to a case to which it has not been applied by the legislature. Our attachment law and arrests without proof of debt, have often been viewed as stains on our system of jurisprudence, otherwise the subject of commendation. There are no reasons in policy or justice for extending them.

If the arrest of this person and detention from the

of his business is thought to be important in the settlement of his accounts and securing any balance which may exist, the common law should have been resorted to, instead of a process in equity.

It has been argued that the severity of this process by arrest is no greater than.would take place, if after filing the oil! the complainant should apply for a writ df ne exeat, by which he might detain the respondent unless he should give security. But a writ of ne exeat would not be granted without proof of debt, and probably not without a hearing and a consideration of the circumstances which might render the granting of such writ unreasonable.

But whatever may be the complainant’s rights in the due course of equity process, it is sufficient for this case, that we

are of opinion that the present process is not authorized by the laws of the commonwealth. The person brought before vs must therefore be discharged.¹

1 A general provision regulating the mode of commencing suits in equity, has been introduced into the Revised Statutes. See c. 90, § 117, 118.

In reference to the writ of habeas corpus as employed in the above case, see Revised Stat. c. Ill, § 1, 2; 1 Chitty on Grim. Law, (3d Amer. ed.) 127, n. 41.