59 Mass. 534 - Ives v. Hamlin — 59 Mass. 534

Isaac C. Ives vs. William P. Hamlin. The plaintiff, in an action brought originally in this court, having made oath before a justice of the peace, as required by St. 1840, c. 87, § 1, that the matter sought to be recovered in such action exceeded in amount the sum of $300; and the oath being indorsed on the writ, but without any date; it was held, on an objection taken to the jurisdiction of the court, that the plaintiff might show by paroi, that the certificate was indorsed before the service of the writ. An agreement, between the plaintiff and defendant in an action in which property has been attached and receipted for to the officer by- a third person, that the plaintiff shall not enforce the receipt, until after a specified time, and a forbearance to enforce it accordingly, will not discharge the receiptor from his liability to the officer, although the agreement is made without the consent or authority of the former. A witness, who was present at the making of a verbal agreement, cannot be allowed to state what he understood to be the effect of such agreement. This was an action of assumpsit, brought originally in this court, by the plaintiff, as a deputy-sheriff, on a receipt signed by the defendant, for goods attached by the plaintiff as the property of one Smith, on a writ of one Rand against him. The defendant objected, and moved to dismiss the action, on the ground that no proper affidavit, that the cause of action exceeded $300 in value, was indorsed on the writ before the same was served, as required by the statute of 1840, c. 87, § 1, in order to give the court jurisdiction. It appeared, that an affidavit in due form was made by Edmund B. Gillett, the plaintiff’s attorney, before William G. Bates, esquire, a justice of the peace, and certified by the latter on the writ, but without any date thereto. Mr. Bates being present, as counsel in the cause, offered to testify, that the affidavit in question was made and sworn to on the day of the date of the writ, and that the certificate thereof was made by himself on the writ, before the same was sent to an officer for service; and he moved for leave to amend his certificate accordingly. The chief justice, before whom the case was tried, being of opinion that the court had jurisdiction, overruled the motion to dismiss. In order to prove one ground of his defence, that of accord and satisfaction, the defendant introduced the deposition of William Porter in relation to a supposed agreement between Rand and Smith, the parties to the suit, in which the receipt was given, which was the subject of the present action. The plaintiff objected to those parts of the deposition in which the deponent stated what he understood and supposed in regard to such agreement. The presiding judge, apprehending from the language of the deponent, in the passages referred to, that he intended to state what he understood and supposed to be the effect of the agreement of the parties, and not what he understood the agreement to be, from their language and conversation,' as heard by him, sustained the objection and rejected the evidence. The defendant also introduced evidence of an agreement made between Rand and Smith, for a valuable consideration, without the knowledge or authority of the present defendant, that Rand should not enforce the receipt now in suit against Hamlin, until after the first of April, 1849, and that Rand forbore accordingly to enforce the receipt. The defendant contended, that by such agreement he was discharged from his obligation as receiptor. The presiding judge, being of opinion that the receipt re- _ lied on by the plaintiff" was a separate and independent contract, on which, by a recovery of judgment on the original writ, and a demand of the goods receipted for, and a refusal to deliver the same, on the execution, within thirty days, a right of action had accrued to the plaintiff, ruled, that this right of action was not discharged by an agreement between the parties to the action in which the goods were attached, by which time was given by the creditor to the debtor, for the satisfaction of the execution. A verdict was thereupon rendered for the plaintiff, subject to the opinion of the whole court upon the case as above reported. I. Sumner and F. Chamberlain, for the defendant. W. G. Bates, for the plaintiff. — Dewey, J. (majority) Dewey, J. The statute of 1840, c. 87, requires, to give jurisdiction to this court, before service of the writ, an oath or affirmation before some justice of the peace, that the matter sought to be recovered actually exceeds in amount the sum of three hundred dollars; a certificate of which oath shall be indorsed on or annexed to the writ. 1. The first question, in the present case, which is brought originally in this court, relates to the sufficiency of the certificate, with the accompanying evidence, to give the court jurisdiction. The only objection taken to the sufficiency of the certificate is, that it has no date. It is found indorsed on the writ, where it could not properly have been placed after service, though it might have been so indorsed fraudulently, or without due consideration. The certificate, according to the requirement of the statute, is indorsed on the writ, but not being accompanied by any date, it is open to the objection taken, until that defect is remedied by proof of the fact, that it was thus indorsed before the service of the writ. Such proof being made, that objection is answered. The certificate itself must be indorsed on or annexed to the writ; and no oral evidence of the taking of the oath would have been competent to supply such deficiency, had it existed. But to the extent of showing the time when the indorsement was made, we think such evidence is competent, and that the motion to dismiss the action was properly .overruled. 2. The defendant then insists, that he has been discharged from his liability on the receipt given to the plaintiff, as a deputy-sheriff, by reason of an arrangement made between the parties to the original action, in which the goods described in the receipt of the defendant in the present action were attached, that the creditor should not enforce his demand upon the receipt, until the first of April following; the judgment in the action having been rendered in September previous. This is supposed by the defendant to present a case of principal and surety, and that the doctrine, that giving time to the principal discharges the surety, properly applies here. As it seems to us, the cases are not analogous. The present defendant is himself the principal on the receipt, as respects the creditor and the officer, whatever relation may exist between him and the debtor. Upon the judgment being rendered against the debtor, and execution duly issued and demand made on the receiptor within thirty days, his liability is fixed. The officer, or the creditor, acting through him, may at any time within six years enforce the receipt by a suit at law; and on the other hand the receiptor, on the making of the demand, may deliver up the property, and thus discharge himself, or in default thereof may pay the value of the property as damages. In all this, he is the principal, and may act Jrrespective of any agreement between the creditor and his debtor; and his liabilities are not extended by an agreement of the creditor with the debtor, not to enforce the receipt for a certain period. The execution must be issued and the demand made within thirty days, or the attachment is discharged. This being done, upon the failure of the receiptor to perform his promise, he becomes presently liable. He can at once discharge himself by payment, and have recourse to the debtor for remuneration ; and herein is the difference between this case and that of an ordinary contract, where the creditor has become legally obliged to postpone the time of payment of a debt or demand secured by a surety. The debt being thus postponed, the surety is deprived of the right of discharging the same at the time when it originally becomes due, and would be made to assume a responsibility for the solvency of his principal, at a more remote period than that stipulated for in his contract, if such postponement was not held to discharge the surety. 3. The only remaining question relates to the rejection of certain portions of the deposition of Mr. Porter. As to this, understanding the testimony rejected as it was assumed to be by the presiding judge, we are of opinion, that upon this point also the ruling was right. Judgment on the verdict.