Mann v. Cook

Massachusetts Supreme Judicial Court

Mann v. Cook

81 N.E. 286, 195 Mass. 440, 1907 Mass. LEXIS 1321

CourtMassachusetts Supreme Judicial Court

DecidedMay 15, 1907

StatusPublished

Cited by2 cases

This text of 81 N.E. 286 (Mann v. Cook) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mann v. Cook, 81 N.E. 286, 195 Mass. 440, 1907 Mass. LEXIS 1321 (Mass. 1907).

Pincite

Opinion

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, 180 Mass. 298), and hence the plaintiff has no case.

If, as is contended by the plaintiff, the arrest was legal, then [443]*443the 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,.

Free access — add to your briefcase to read the full text and ask questions with AI

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, 180 Mass. 298), and hence the plaintiff has no case.

If, as is contended by the plaintiff, the arrest was legal, then [443]*443the 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,.

Cite This Page — Counsel Stack

Bluebook (online)

81 N.E. 286, 195 Mass. 440, 1907 Mass. LEXIS 1321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-cook-mass-1907.

Opinion

Related

Cite This Page — Counsel Stack