Vesanen v. Pohjola

Thaxter, J. This action of debt on a judgment was heard on an agreed statement of facts by the presiding justice who ordered judgment for the plaintiff. The case is before us on exceptions of the principal defendant. The judgment was recovered at the November Term, 1941, of the Superior Court within and for the County of Knox. An execution was duly issued which ran against the goods and es — 218 — tate, and against the body of the defendant. On this he was arrested and imprisoned. On his promise to the plaintiff to pay the amount due on the judgment in weekly installments of five dollars, he was released on the plaintiff’s oral direction given to the jailer. The defendant now claims that, because the direction to the jailer was not in writing, as provided by Rev. Stat. 1930, Ch. 124, Sec. 60, the judgment was satisfied by reason of the arrest and subsequent discharge from custody. The statutory provision in question reads as follows: “A creditor may discharge his debtor from arrest, or imprisonment on execution, by giving to the officer or jailer having him in custody written permission to go at large; with the same effect as a discharge or disclosure.” Section 61 provides as follows: “A certificate of a discharge on execution in any of the modes hereby authorized, and of the cause of it, shall, at any time, at the creditor’s request, be indorsed on the execution by the officer who had such debtor in custody; and if it is before the return day of the execution, it may still be levied on his property; if after, it may be renewed like other executions, against his property only; and the judgment may be revived or kept in force, with said execution, as judgments in other cases.” The argument of the defendant is that at common law the arrest of a debtor on an execution, or at least his arrest followed by his discharge, was a satisfaction of the judgment and that this common law rule is still in force except in so far as it may have been modified by statute. Consequently, it is contended, this plaintiff could have preserved his right to sue on the judgment only by a written permission given to the jailer that the debtor be discharged. If the rule were otherwise what, it is argued, is the purpose of providing in section 61 that, if the — 219 — statutory provision is followed, the judgment may be kept in force? It is hardly necessary to point out the injustice which is done, if the defendant, securing his release by his promise to pay the debt over a period of time, is permitted to repudiate his promise and claim a satisfaction of his obligation because of such discharge from custody. It is the duty of the court to interpret statutes in such a way as to carry out the purpose of the legislature, and we are loath to believe that any legislature intended to establish any such doctrine as that for which the defendant now contends. We should bear in mind the words of Judge Shepley in Spencer v. Garland, 20 Me., 75,76, where the defense to an action on a judgment was that the judgment had been discharged by the release of the debtor on giving a poor debtor’s bond: “And if this action cannot be maintained the effect will be, that the defendants by giving a bond and neglecting to perform the condition without any payment extinguish the judgment, and deprive the plaintiffs of the right to collect the debt. The statute for the relief of poor debtors cannot receive such a construction.” The defendant asks us to revert to the common law rule which was based on the right of the creditor to take the body of his debtor and confine him in jail until the debt should be paid, a doctrine which regarded the custody of the body as so far a satisfaction of judgment that on the debtor’s discharge the creditor lost all right to collect his debt. Coburn v. Palmer, 10 Cush., 273; Jones v. Jones, 87 Me., 117,32 A., 779. It was a procedure which this court in Jones v. Jones has branded as involving degradation and punishment in distinction from the “humane system” set up by our statutes which permits imprisonment only for the purpose of obtaining discovery of the debtor’s property. This archaic principle, condemned by the sound judgment of a more enlightened age, was swept aside by statute even before Maine became a state. Mass. Laws 1780-1807, Vol. I, 401: “An ACT for the Relief of poor Prisoners — 220 — who are committed by Execution for Debt.” (Nov. 19,1787). A study of the various statutory enactments and the cases interpreting them convinces us that the defendant’s contention cannot be sustained that the validity of the judgment depended solely on the release of the debtor on the creditor’s “written permission.” The early Massachusetts statute cited above was enacted in 1787. It provided that a debtor, might be released from custody on taking an oath that he had no property sufficient to support himself in jail. This act in principle modified the whole concept of imprisonment for debt. No longer was the creditor given the absolute right to keep his debtor in jail until the debt was paid; and, consequently, since that time arrest on an execution has no longer been regarded as a satisfaction of thé debt. As a consequence a judgment remains valid and enforcible even though the debtor may have been released from custody. Jones v. Jones, supra. On February 5, 1820, just prior to the time when Maine became a separate state, Massachusetts enacted another statute which provided that the creditor should be liable for the support in jail of a debtor committed on mesne process or on an execution. Mass. Gen. Laws, 1799-1821, Ch. 94. There was also included a provision that the creditor might at any time discharge the debtor from custody and that such discharge should not operate to release the debtor from the debt. When therefore Maine became a state, these statutes were in effect here; and itwas' therefore established law here that a poor debtor might be released either on his taking the oath prescribed by the statute or by order of the creditor, and in neither case did such release operate to discharge the debt. Subsequently our legislature took care of the subject by statute. First came the act of March 21, 1821, Acts & Resolves 1820-1821, Ch. 122, Sec. 13. There was reenacted here the provision of the Massachusetts act which rendered the creditor liable for the support of the debtor in jail, subject to the right of the creditor to discharge the debtor from custody without — 221 — such discharge operating to release the debtor from the debt. Then in 1822, Acts & Resolves 1822-1831, Ch. 209, we find a general statute governing the release of poor debtors. Section 12 of this act is similar to that in the Massachusetts Act of 1787 providing for the discharge of a debtor from prison on his taking an oath that he had no property sufficient to support himself in jail. Section 18 of the act provided that a judgment obtained against such debtor should remain in force “notwithstanding such discharge.” Section 27 read as follows: “That whenever any creditor who may have caused his debtor to be arrested, or committed to prison on execution, shall think proper to discharge such debtor from such arrest or from prison, he shall have the right so to do, without affecting or discharging the judgment upon which such execution issued, by giving to the officer who made the arrest, or by leaving with the keeper of the gaol, a written permission for such debtor to go at large; and such discharge shall not operate to release the debtor from the debt and costs on which he was arrested or committed, but such debt and costs shall be and remain a legal claim against the goods and estate of such debtor; but the body of such debtor so released shall be, forever thereafter, exempted from arrest and imprisonment upon such execution and upon any execution which may be obtained in virtue of the judgment upon which such execution issued.” This is in substance the same provision as Rev. Stat. 1930, Chap. 124, Sec. 60, with which we are concerned in the present case. In determining whether as claimed by the defendant, the only method by which the debtor could be released without discharging the debt is by “written permission” of the creditor, we must remember that this statutory provision was not regarded as inconsistent with that already in effect providing for release generally at the direction of the creditor who was un — 222 — willing longer to assume the obligation to pay the debtor’s board. And significant also is the following section, 28, which provided that the jailer on his own initiative should release the debtor if the creditor did not provide for his board, and then there follows this proviso: “That such discharge shall not operate to release the debt or cost, on which such debtor was imprisoned.” It would be illogical to hold that a discharge of a debtor on the oral direction of the creditor would amount to a satisfaction of the debt, if the creditor could accomplish the same result without discharging the debt merely by failing to provide for the support of the debtor in jail. In 1828, Acts & Resolves 1822-1831, Chap. 410, Sec. 3, the legislature specifically provided that where a debtor had been discharged on written permission of the creditor, or on taking the poor debtor’s oath, the execution should be kept alive so that a levy might be made on it against the property of the debtor. The procedure for the relief of poor debtors was further amplified in 1831, Acts & Resolves 1822-1831, Chap. 520, and in 1835, Acts & Resolves 1832-1839, Chap. 195. The act of 1835, Sec. 12, contained the following specific provision: “That no release of any debtor or pensioner, (prisoner) under the provisions of this Act, shall affect or impair the right of the creditor to his debt or demand, but the same shall remain in full force against the property or estate of said debtor, and may be at any time satisfied out of any such property and estate, which may be discovered, and shall not by law be exempted from attachment and execution, in the same manner as if such discharge had not been made.” There was embodied in the revision of the statutes in 1841, Rev. Stat. 1841, Chap. 32, Sec. 33, the provision of the 1821 law that a creditor, unwilling to assume the obligation of a debtor’s board, might release a debtor from prison without discharging the debt, also in Chap. 148, Sec. 42, the principle — 223 — of the 1835 law specifically providing for the validity of the debt, and in Chap. 148, Sec. 59, the provision of the 1822 law relating to release of the debtor on the “written permission” of the creditor. Section 60 of the same chapter incorporated the provision of the 1828 law under the terms of which the execution could be kept alive. In the same revision, Chap. 148, Sec. 19, we find the provision indicating that the purpose of arrest and imprisonment of a debtor on an execution is “for the purpose of obtaining a discovery of his property.” This is now embodied in Rev. Stat. 1930, Chap. 124, Sec. 45. Such remained the state of the statutes until 1857. In the revision of that year there was dropped the general provision of the 1821 law relating to the right of the creditor to release his debtor without discharging the debt, also there was omitted the specific provision of the 1835 law that a discharge under the provision of the act for the “Relief of Poor Debtors” should not discharge the debt. Such is the essential history of the statutes on this subject. Of prime importance in determining the legislative intent, in enacting in 1822 the clause providing for release of a debtor on the written permission of the creditor, is the relationship of that provision to the others which were in force with it. If, in the case of a release of a debtor with the consent of the creditor, it was the intent of the legislature that the judgment should remain valid only if such release was by the “written permission” of the creditor, what was the function of the law passed in 1821 providing without such qualification for the release of a debtor by the creditor without thereby releasing the debtor from the debt? Could these two provisions have remained together on the statute books for over thirty-five years, and have been reenacted together in 1841, if the clause relating to “written permission” means what the defendant now contends? If only by “written permission” could the debt be saved for the creditor, how can we account for section 28 of the act of 1822 which provides that the debt remains valid — 224 — if the debtor is discharged because of the creditor’s refusal to provide for the debtor’s board in jail? We feel that a consideration of the origin and growth of the statutes governing this subject indicates without more the error of the defendant’s interpretation. But beyond that the cases which discuss these various enactments support the construction which we place on the statute now in question. In the first place we must be careful to distinguish between those cases which concern the validity of an execution and those which involve the validity of the judgment. In Miller v. Miller, 25 Me., 110, the question was the validity of a levy made on an execution on which the debtor had been arrested, committed to prison, and subsequently discharged on taking the poor debtor’s oath. Pub. Laws 1828, Chap. 410, Sec. 3, provided that where a debtor was discharged on written permission of the creditor or on taking the poor debtor’s oath provided for in the statute, the execution might still be levied on the property of the debtor “by procuring the Sheriff or Gaoler to certify a true copy of such permission or certificate upon such execution.” This is in substance the procedure set forth in Rev. Stat. 1930, Chap. 124, Sec. 61. The case holds true that, as there was no such return on the execution as required by the statute, the levy was void. The court points out the distinction between the act of 1835, Acts & Resolves 1832-1839, Chap. 195, Section 12, Rev. Stat. 1841, Chap. 148, Sec. 42, which provided for keeping the debt alive, and the act of 1828, Acts & Resolves 1822-1831, Chap. 410, Sec. 3, Rev. Stat. 1841, Chap. 148, Sec. 60, which to use the language of the opinion, page 114, “provided a remedy for the destruction of the life of the precept.” As has been pointed out there was omitted from the revision of the statutes in 1857 the provision of the act of 1835 providing specifically that a release of a debtor under the provision of the law for the Relief of Poor Debtors should not impair the right of the creditor to his debt. Just why this was omitted is — 225 — not clear, but probably it was because the whole policy of the law had so changed that arrest of the debtor followed by his release was no longer regarded as a satisfaction of the debt, and such an enactment was no longer regarded as necessary. This was certainly the view which Chief Justice Peters took when he wrote the opinion in Jones v. Jones, supra. This suit was an action of debt on a judgment. The defendant was arrested on an execution, gave a poor debtor’s bond and was discharged on a disclosure. The court said, pages 118-119: “It was contended at the trial of this case that no action can be maintained upon the judgment for the alleged reason that, by the provisions of the poor debtor chapter contained in the Revised Statutes of 1857, applicable hereto, the judgment was satisfied and discharged by the debtor’s arrest and the giving of a bond for his release therefrom. The argument to sustain this position, which was sustained by the presiding judge, seems to have been that there was omitted from the statutes of 1857 an act which had existed in our statutes up to the date of that revision from the date of its passage in 1835 (see chap. 195, Laws of 1835), which act expressly provided that the discharge of a poor debtor upon his disclosure should not have the effect, to impair any right which the creditor had to obtain satisfaction of his judgment out of the debtor’s estate or property not exempted by law. The contention is that the supposed statutory omission revived the rights of the parties as they would have been at the old common law, under which an arrest of a debtor deprived the creditor of all other remedy for the collection of his debt. “We cannot concede the correctness of any of these propositions. In the first place the law would be the same with or without the enactment of 1835. That act was a declaration merely of the law as it stood before, and this court virtually said so in its opinion in the case of Spencer v. — 226 — Garland, 20 Maine, 75. It necessarily resulted from our poor debtor laws that an arrest of a debtor and his subsequent discharge from arrest could not have the effect to bar the creditor from collecting his claim out of the debtor’s property. “The common law system and our statutory system on this subject are widely unlike. At the old common law an arrest upon an execution was largely designed as a punishment of the debtor for not paying his debt, and he could be held in imprisonment until he did pay it. On the contrary, our very humane system is one in no respect involving punishment or degradation, but seeks only to obtain a discovery of the debtor’s property and its situation, in order that the creditor may be the better enabled to satisfy his judgment out of such property.” To be sure this was a release on disclosure but the broad language on which the court bases its opinion is applicable to any release howsoever obtained. For the opinion says in effect that no longer in this state is arrest and imprisonment regarded as a satisfaction of the debt; imprisonment now is solely for the purpose of obtaining a discovery of the debtor’s property. The case of Moor v. Towle, 38 Me., 133, supports the plaintiff’s claim in the instant case. It was an action of debt on a judgment. The defendant pleaded that since the action was commenced, an alias execution was taken out on the original judgment, on which execution he was arrested and committed to prison, and there remained. The court held that the action could be maintained. The court said, page 133: “The commitment of the defendant on the execution did not discharge or annul the judgment on which it issued, nor discharge the action pending thereon.” It is suggested that this case is not in accord with Clement v. Garland, 53 Me., 427. Chief Justice Appleton who concurred in the opinion in the Moor case wrote the opinion in the — 227 — Clement case, and Judge Cutting concurred in both opinions. The cases are in no respect the same. The later case involves, not the validity of a judgment but of an execution and is in accord with the rule laid down in Miller v. Miller, supra. See to the same effect as Moor v. Towle, Clark v. Goodwin, 14 Mass., 237,239. The cases in Massachusetts and in Vermont show significantly the general trend to disregard the old common law doctrine. In Raymond v. Butterworth, 139 Mass., 471 (1 N. E., 126, 127), the court said, 471: “The suit was upon a judgment rendered against the plaintiff in error and one Bemis. Bemis was arrested upon the execution issued thereon, and was afterwards, by order of the judgment creditor, released from arrest; and the plaintiff in error contends that this operated as a discharge and satisfaction of the judgment. Whatever may be the common law doctrine as to the effect of the commitment of a debtor on execution, it has long been the settled law of this Commonwealth that a judgment is not discharged by such commitment and a subsequent release from arrest, but remains in full force against the party committed, and may be satisfied by a levy on his property, and, a fortiori, it remains in force against a joint judgment debtor. Cheney v. Whitely, 9 Cush., 289.” In Willard v. Lull, 20 Vt., 373, the court said, 377: “By the common law the body, when once arrested, is a full satisfaction of the debt. It is the same by our law, unless the body is discharged, with a promise to pay the debt on the part of the debtor; Foster v. Collamer, 10 Vt., 466; or unless the release is by operation of law. And at all events, the body, while held in confinement, is esteemed a temporary satisfaction of the debt. It does not operate as a release of collateral remedies, which are so far perfected — 228 — as not to depend upon any proceedings under the execution for their support.” As we have previously pointed out, the defendant claims that the release of a debtor from custody in any other way than is specifically authorized by statute discharges the debt. He falls back on the old common law rule and points out that Rev. Stat. 1930, Chap. 124, Sec. 60, authorizes the release on the written permission of the creditor, and that section 61 provides that if the statutory procedure is followed “the judgment may be revived or kept in force, with said execution, as judgments in other cases.” Here it is contended are set forth, by inference at least, the conditions under which the judgment may be kept alive. This contention, not only ignores the fundamental principles which have been laid down in our own adjudications, but fails to take into consideration the history of the particular statutory provision. Section 61 of the present revision is a combination of sections 60 and 61 of Rev. Stat. 1841, Chap. 148. Section 59 of this chapter provided for release of a debtor on the written permission of the creditor; section 60 provided that the execution should be valid as against the property of the debtor, if written endorsement was made on the execution of a certificate showing that the debtor had been released in any of the modes specifically provided for by the statute; and section 61 provided that, whether such endorsement was made or not, the judgment should continue to be valid with the exception that no levy should be made thereafter on the body of the debtor. It is apparent therefore that the purpose of section 61 of our present law was merely to lay down a procedure by which, after the discharge of the debtor, the original execution or an alias execution might be enforced, no longer against the body, but against the property of the debtor. The reference to the judgment being “revived or kept in force” was merely declaratory of the law. Jones v. Jones, swpra. It most certainly was not the intent of the legislature to imply — 229 — that a release of a debtor in any other way than by written permission would discharge the debt and the judgment. The construction contended for by the defendant would do violence to legislative purpose as evidenced by all statutory enactments since Maine became a state, and particularly to the basic principle, Rev. Stat. 1930, Chap. 124. Sec. 45, that arrest on an execution is “for the purpose of obtaining a discovery” of the debtor’s property. It would result, not in the furtherance of justice, but of injustice. It would set back the hands of the clock to a century and a half ago, when in a less humane age, a creditor was permitted to hold the body of his debtor until the debt was paid. Exceptions overruled.