Massachusetts Supreme Judicial Court, 1812

Fowler v. Bebee

Massachusetts Supreme Judicial Court · Decided September 15, 1812 · Parsons

9 Mass. 231

Cases that cite this one

89 later published cases cite this decision. The 25 that cite it most often are listed here.

Colton v. Beardsley, Bigelow & Spooner (New York Supreme Court 1860)
City of Lawrence v. Commissioners of Public Works (Mass. 1945)
In re Ah Lee (District Court, D. Oregon 1880)
Phillips v. Payne (Supreme Court of the United States 1876)
Brown v. O'Connell (Conn. 1870)
Carleton v. People (Mich. 1862)
Town of Plymouth v. Painter (Conn. 1846)
Tucker v. Aiken (Superior Court of New Hampshire 1834)
Harry Calcutt III v. FDIC (6th Cir. 2022)
Harry Calcutt III v. FDIC (6th Cir. 2022)
Commonwealth v. Vaidulas (Mass. 2001)
Appley v. Locke (Mass. 1986)
Jackson Redevelopment Authority v. King, Inc. (Miss. 1978)
Lesem v. Getty (Cal. Ct. App. 1937)
Commonwealth v. DiStasio (Mass. 1937)
Ridout v. State (Tenn. 1930)
Sevigny v. Lizotte (Mass. 1927)
Moloney v. Selectmen of Milford (Mass. 1925)
Hiday v. State ex rel. Snyder (Ind. Ct. App. 1917)
Simpson v. Patton (Ohio Ct. App. 1913)
In re the Elections of Directors of George Ringler & Co. (N.Y. 1912)
State ex rel. Bales v. Bailey (Minn. 1908)
State ex rel. Bockmeier v. Ely (N.D. 1907)
Hammondsport Law, Loan & Collection Ass'n v. Kinzell (New York County Courts 1904)
Smith v. Sullivan (Wash. 1903)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Parsons, C. J.

The question, which, by the plea before us, we *213are called on to decide in this action, is, whether the service of the original writ by Rodney Ray was legal.

That Jonathan Smith, Jun., is sheriff of the county of Hampden defacto, is very certain; but whether he is sheriff c'e jute, is the question made by the defendants.

Mr. Smith is no party to this record, nor can he be legally heard in the discussion of this plea; although our decision would as effectually decide on his title to the office, * as if he were a This would be a man unheard, contrary to natural equity, and the policy of the law. From considerations like these has arisen the distinction between the holding of .an office de facto and dejure.

We do not decide whether he is sheriff de jure of the county of Hampden, or has intruded himself into the office. • But as we are of opinion that he is sheriff in fact of that county, the plea in abatement must be adjudged bad, and the defendants ordered to answer further.

If an action should be commenced against one claiming to be sheriff, for an act which he does not justify, bul as sheriff; or if an information should be filed, calling on such a one to show cause why he claimed to hold that office; in either case he would be a party ; and the legality of his commission" rnignt come in question, and meet a regular decision, (a)

Respondeos ouster awarded.

[Commonwealth vs Fowler, 10 Mass. Rep. 290.— Bucknam vs. Ruggles, 15 Mass Rep. 180. — The People vs. Collins, 7 Johns. Rep. 549. — M’Instry vs. Tanner, 9 Johns Rep. 135. —Ed.]

Case-law data current through December 31, 2025. Source: CourtListener bulk data.