20 N.H. 320 | Superior Court of New Hampshire | 1850
By chapter 185, section 8, of the Revised Statutes, it is provided that no person shall be arrested upon any writ or execution, founded on a contract made after the first day of March, one thousand eight hundred and forty-one, unless the plaintiff or some person in his behalf shall make an affidavit, before a justice, on the back of such writ, that in his belief the defendant is justly indebted to him in a certain sum, exceeding thirteen dollars and thirty-three cents, and that he conceals his property, &c.
The present case raises a question upon the construction of this statute, as to what is signified by the words, “ such writ,” upon the back of which the affidavit is required to be engrossed, as a condition precedent to the right and power of the creditor to cause the arrest of his debtor. The principal source of doubt appears to be the prior use of the word “writ” in the same sentence, inducing the apprehension of its being the sole antecedent referred to by the word “ suchfor an execution is as truly and by denomination a writ, as is a writ of mesne process, which is in common speech distinctively called a writ. But we think that the grammatical reading of the passage does not necessarily convey the meaning attached to it by the defendant to this motion. The word writ, as last used, signifies a class of writs of which the writ of mesne process and the execution are varieties, and that by the words, “such writ,” are comprehended, as antecedents, both the writ and execution mentioned in the first clause of the section.
This view of the subject derives strong confirmation, if we consider the reason and the object of the statute. It was intended to prevent causeless and fruitless arrests of debtors, and to authorize creditors to procure such arrests in cases where there might be cause to suspect on the part of the debtor a concealment of property, or an intention to escape the process of law. It is plain that the cause of such suspicion might arise long after the service
Circumstances that might afford just cause to the creditor for suspecting his debtor of either the act or the intention named in the statute, might exist at the time of the service of mesne process, and have wholly passed away at the issuing of the execution. It would be a hardship from which the statute was intended to protect the debtor, if he could be arrested on execution, while no suspicion or ground of suspicion existed, merely because at a day, long before, his creditor had seen cause to hold such suspicion.
On the 'whole, we have no doubt that the writ required to be indorsed by the affidavit in order to justify the arrest, is the writ by virtue of which the arrest is made, and that such indorsement upon a different writ is not sufficient to satisfy the statute. In the case before us, no such affidavit was entered upon the back of the execution. The debtor was illegally arrested thereon, and the motion to the court below to set aside the execution ought, for that cause, to prevail. Certificate is, therefore, ordered to the Court of Common Pleas accordingly.
