Kellogg v. Underwood

163 Mass. 214 | Mass. | 1895

Knowlton, J.

By the common law, the arrest of a debtor on an execution and his voluntary release by the creditor are a satisfaction of the judgment, so that no alias execution can be taken out or other proceedings had under it. Coburn v. Palmer, 10 Cush. 273. Nowell v. Waitt, 121 Mass. 554. Kennedy v. Duncklee, 1 Gray, 65.

If we assume in favor of the defendants that this is the law to-day in Massachusetts, the principle is not applicable to the present case. Pub. Sts. c. 162, §§ 45, 46, provide for the support of a debtor who is confined in prison on mesne process or execution in a civil action, and who claims support as a pauper. In such a case the creditor may furnish money or security to the jailer for his support, or may order him to be discharged, or, if the creditor fails to provide for his support within twenty-four hours after a demand by the jailer, the jailer shall discharge him. By § 47 of the same chapter it is provided that, when a debtor is so discharged by order of the creditor or by the jailer, “ the debt and costs, with all sums paid by the creditor for the debtor’s support in prison, shall remain a legal claim against his goods and estate, and may be enforced accordingly in the same manner as if he had not been committed on execution; but his body shall never thereafter be liable to arrest or imprisonment for the same debt, costs, or charges.” There are similar provisions for a case where the debtor takes the oath for the relief of poor debtors, and for some other cases under the statute. The effect of these provisions is to leave the judgment in full force, except that no execution can be issued under it for the arrest of the body of a defendant who has been so discharged. Execution may be issued against his property, or against the person or property of a co-defendant, and proceedings may be had under it against the property of any defendant, and against the body of any defendant except him who has been discharged from arrest, with the same force and effect as if no arrest had ever been made. Cheney v. Whitely, 9 Cush. 289. Raymond v. Butterworth, 139 Mass. 471.

It follows that the recognizance sued on in the present case was not discharged or affected by the subsequent arrest of a joint defendant and his discharge from imprisonment under the statute by order of the creditor after he had claimed support as a pauper. Judgment affirmed.