166 Mass. 226 | Mass. | 1896
The single question of law in this case is whether an execution in common form, issued for arrears of alimony in a cause of divorce, can be served by an arrest of the person without an affidavit and certificate annexed to the execution, such
Under Gen. Sts. c. 124, § 5, neither affidavit nor certificate was necessary to authorize an arrest on such an execution. Chase v. Ingalls, 97 Mass. 524, 530. Foster v. Foster, 130 Mass. 189.
The argument is, that, by the omission in Pub. Sts. c. 162, § 17, and in St. 1888, c. 419, § 1, of the words “ for debt or damages,” found in the Gen. Sts. c. 124, § 5, the law on this subject has been changed. The Public Statutes were intended to be a consolidation of the statutes in force at the time they were passed. If the language of the Public Statutes is clear, and admits of but one interpretation, it must be followed, although the interpretation may be different from that given to the statutes theretofore in force. But if the language of the Public Statutes is ambiguous or doubtful, regard must be had to the meaning of the statutes intended to be incorporated in the Public Statutes. Bent v. Hubbardston, 138 Mass. 99. Pratt v. Street Commissioners, 139 Mass. 559. St. 1888, c. 419, § 1, follows in all respects material to the present case the language of Pub. Sts. c. 162, § 17, and the contention is that it clearly appears from the language of these statutes that the Legislature intended to put executions in common form issued in all civil actions upon the same footing, except as expressly provided in these statutes, and that a cause of divorce is a civil action.
In Lucas v. Lucas, 3 Gray, 136, it was decided that Rev. Sts. c. 99, §§ 1 et seq., did not authorize this court to grant a writ of review in a cause of divorce, because a petition for divorce was not a civil action within the meaning of said first section. The court say: “ It may be that the term ‘ civil action,’ in some respects, and to some purposes, may, without violence to the language, be held to include proceedings for divorce; and yet all laws respecting civil actions may not so apply as to include those proceedings. This results necessarily from the uncertainty and ambiguity of language; The fact that there has been no practice of allowing the review of decrees of divorce, and that this is a novel, if not an unprecedented, proceeding, is strong evidence of what the general understanding of the law upon this subject has been; but this, of course, is not conclusive.”
Judgment affirmed.