Ruberg

166 Mass. 33 | Mass. | 1896

Field, C. J.

Section 44 of the Pub. Sts. c. 162, is as follows: “ If the debtor arrested on execution and taken before the magistrate does not desire to take an oath, or fails to procure surety or sureties to the satisfaction of the magistrate as before provided, or if upon his examination the oath or oaths are refused to him, of which refusal a certificate shall be annexed to the execution and signed by the magistrate, he shall be conveyed to jail, and there kept until he has recognized as herein provided, (if the oath for the relief of poor debtors has not been refused him,) or until the execution is satisfied, or he is released by the creditor, or has given notice as before provided and taken the oath for the relief of poor debtors, or the oath that he does not intend to leave the State, in cases where such oath is permitted.”

We think that this section means that the certificate of the refusal of the magistrate to administer to the debtor the oath for the relief of poor debtors shall be annexed to the execution on which he has been arrested; and there has been since the Public Statutes no change in the law in this respect material to the present case.

The nature and effect of the debtor’s entering into a recognizance are stated in Morgan v. Curley, 142 Mass. 107, 109, as follows: “ When the debtor enters into a recognizance in compliance with the statutes, the recognizance takes the place of the execution and the arrest, and remains as security to the creditor. The power of the execution is suspended, until the debtor submits himself to examination, and the magistrate refuses the oath, and annexes to the execution his certificate to that effect. Then, if the officer is present at the place of the examination, and the debtor is there, abiding the final order of the magistrate, the officer is empowered to take him. The recognizance is then of no effect, and the execution resumes its former power.”

When the service of an execution has been begun before the return day, it may be completed after the return day, whether the service be by a levy upon the lands or goods of the debtor, or by an arrest of his person. This is the rule at common law, as well as under the statutes. The taking of the debtor by the officer into custody on the execution after the certificate of the refusal of the oath or oaths has been annexed to it is not a new or second arrest, but it is a resumption or continuance of the original arrest, which has been suspended during the proceedings under the recognizance. Prescott v. Wright, 6 Mass. 20. Heywood v. Hildreth, 9 Mass. 393. Russell v. Goodrich, 8 Allen, 150. Cafen v. Doty, 13 Allen, 262.

Section 55 of the Pub. Sts. c. 171, was taken from the Gen. Sts. c. 133, § 53, and from the Rev. Sts. c. 97, § 14. The section was inserted in the Revised Statutes on the recommendation of the Commissioners. Commissioners’ Report, c. 97, § 14, notes. Of this section the Commissioners say: “ One part of this section has been already recognized as law by the Supreme Court in the 6 Mass. R. 20; and the other part seems to be also established by the books of common law. A similar principle has been adopted by the Legislature, as to the acts of a deputy sheriff after the removal of his principal (Stat. 1808, 46), which enactment is expressed to have been made for the purpose of removing and preventing doubts; and it is for the same reason that this section is now proposed.”

The present case concerns only the part of Pub. Sts. c. 171, § 55, which purports to authorize an officer to complete the service of an execution after the return day when the service was begun before that day. It was meant to be of general application, although the cases to which it has been applied have been those of a levy upon real or personal property. At common law, after the arrest of the debtor on execution, there were no proceedings similar to those under our statutes for the relief of poor debtors. But these proceedings, after a recognizance has been given, we think, merely suspend the arrest until it can be determined whether the debtor shall be discharged from arrest or committed under the execution on which he was arrested. The petitioner, after the oath was refused to him, was therefore lawfully committed to jail under the alias execution, which was the execution on which he was originally arrested. This is the •only question argued.

Petition dismissed.