Hopkins v. Fogler

Appleton, C. J. This is a petition for a writ of certiorari to quash the record of the proceedings on a poor debtor’s disclosure. The record shows that the creditor, after being notified, chose one of the magistrates; that after objecting to their jurisdiction his attorney proceeded to examine the debtor, and that from his answers it is apparent that having no real nor personal estate he was properly permitted to take the poor debtor’s oath. The granting or the refusal to grant the writ of certiorari is a matter of judicial discretion. The writ should never issue- when proceedings are sought to be quashed for merely trivial or formal error, or when it is apparent no injustice will be done by not permitting it to issue. The objection is taken that the debtor, being imprisoned in jail, ‘ had not given the bond required by R. S., c. 113, § 24, said bond never having been approved by the creditor in writing, nor by two or three justices of the peace and of the quorum in writing selected, and proceeding as in c. 113, § 42, and that/ therefore, said debtor was not legally released from his said imprisonment.’ If not legally-released, it is obvious that the plaintiff has his remedy against the jailer for any illegal action on his part. But the bond is approved by two justices of the peace and quorum, one of whom was chosen by the jailer for the creditor and one chosen by the debtor, By § 42, in case of a refusal or of unreasonable neglect on the part of the creditor to choose a justice,he may be chosen by the officer who has the debtor in charge, etc. The bond being approved by a justice chosen by the person ’hav [269] ing the debtor in chai’ge, and there being an entire absence of proof on the subject, we will not assume the action of the jailer unlawful for the purpose of quashing proceedings otherwise regular. The second objection taken is, that the justices did not appraise a claim for malicious prosecution, which the debtor had against one Selden Morton, and on which he had commenced a suit in which damages to the amount of $1,500 were claimed, to be gnedassi and delivered by the debtor to the creditor, and applied towards the satisfaction of his demand. It would, undoubtedly, be a matter of great difficulty to appraise the cash value of a claim for malicious prosecution, the damages for which are to be assessed hereafter by a jury upon evidence of which the magistrates are not shown to possess any knowledge. But the statute imposes no such duty upon them. By § 31, when the ‘ debtor possesses or has under his control any bank-bills, notes, accounts, bonds, or other contracts or property, not exempted by statute from attachment, which cannot be come at to be attached,’ then, in a certain contingency, ‘ the justices, hearing the disclosure, shall appraise and set off enough of such property to satisfy the debt, cost, and charges,’ etc. But it is manifest that an unliquidated claim for damages for a malicious prosecution, the amount of which is unascertained and unascertainable by the magistrates, is not an item of property within this section, which they are to appraise and set off, in whole or in part, to satisfy the debt, cost, and charges. It was held in Massachusetts that a claim against a railroad for an injury to the person does not pass by an assignment of his estate under their insolvent laws before the recovery of judgment. Stone v. Boston & Maine Railroad, 8 Gray, 539. ‘ An action for damages to the person is not property, nor a right of property, nor a debt, until it is reduced to judgment; and then,’ say the court, ‘ it passes, because it has assumed the form of a debt.’ So, -in the case of McGlinchy v. Hall, 59 Maine, 152, it was decided that a [270] suit for personal damages for an assault was not assignable until judgment was entered up. ' Writ denied. Cutting, Kent, Walton, Dickerson, and Barrows, JJ.,, concurred.