137 Mass. 467 | Mass. | 1884
The fifth charge mentioned in the Pub. Sts. c. 162, § 17, having been proved to the satisfaction of the commissioner of insolvency, the arrest of the petitioner was lawful, notwithstanding the fact that the first charge was also sworn to in the affidavits. Frost's case, 127 Mass. 550.
When a debtor is lawfully arrested, he is arrested and held by virtue of the execution, not by virtue of the charge or magistrate’s certificate; Stewart v. Griswold, 134 Mass. 391, 393; and, apart from exceptions such as that provided in § 37, the nature of the charge has nothing to do with the mode of getting discharged from imprisonment. If the debtor wishes to get discharged without paying his debt, he can only do so by a new process, in the way and on the conditions provided by statute. Speaking generally, there is only one such way, and there is one universal condition; and that is to take the poor debtor’s
The true view is, that, after the debtor has been arrested, proof of fraud is simply a means of meeting the debtor’s proof of ability to take the oath; and, if the creditor is satisfied that he can defeat the debtor on the issue of property, he need go no further. Prisoner remanded.