111 Mass. 288 | Mass. | 1873
The decision of this case depends upon a consideration of the provisions of successive statutes upon the subject of the effect of the discharge of a poor debtor.
By the Rev. Sts. c. 98, § 14, a judgment debtor, arrested on execution, and discharged on taking the poor debtor’s oath, was declared to be “ forever exempted from arrest or imprisonment for the same debt,” unless convicted of having wilfully sworn falsely upon his examination. It cannot be doubted that an arrest, either on mesne process or execution, in a subsequent action on the first judgment, must have been deemed an arrest “ for the same debt,” within the meaning of that provision; and that the special reasons on which it has been held in Faxon v. Baxter, 11 Cush. 35, Bradford v. Rice, 102 Mass. 472, and other cases there cited, that a judgment obtained after the commencement of proceedings in insolvency or bankruptcy is not the same debt for the purposes of proof or discharge of the original cause of action, did not apply. Willington v. Stearns, 1 Pick. 497. A similar interpretation must have been given to the Sts. of 1842, c. 56, § 4, and 1844, c. 154, § 7, by which it was declared that a poor debtor, discharged from arrest, either on mesne process or on execution, on taking the oath, should not “ be arrested again for the same cause of action.”
The St. of 1855, c. 444, § 7, prescribed the form of oath of a poor debtor arrested on execution, and provided that, 14 upon taking this oath, the debtor shall be discharged from arrest, and shall be forever exempt from arrest on the same execution, or upon any process founded on the judgment; ” and § 12 provided that the form of oath of a poor debtor arrested on mesne process should be the same, “ and he shall never be liable to arrest for the same cause of action.” The corresponding provisions of the St. of 1857, c. 141, §§ 9,19, (which was the statute in force at the time of the enactment of the General Statutes,) were expressed in exactly the same words, adding in each section “ unless he shall be convicted of having wilfully sworn falsely upon his examination.”
The Sts. of 1855, c. 444, § 14, and 1857, <?. 141, § 29, provided that if the creditor at any time made default, after request, in the payment of the magistrate’s fees, the magistrate might discharge the debtor, but contained no special provision as to the effect of a discharge in that contingency. In the Gen. Sts. c. 124, § 48, this provision was extended, and put in the following form : “ If the plaintiff or creditor shall, at any time after request, make default in the payment of the fees, or if the plaintiff or creditor, or some one in their behalf, shall not attend the examination, the defendant or debtor shall, without examination and without payment of any fees, be discharged from arrest or imprisonment, and shall be forever exempt from arrest on the same execution or any process founded on the judgment; and a certificate of such discharge under the hand of the magistrate shall be annexed to the writ or execution.” The considerations already mentioned as applicable to § 22 seem to us to be decisive in favor of the debtor when discharged under § 48.