Dyer v. Hunnewell

Parker, C. J. The act for the relief of poor prisoners, who are committed in execution, is very general in its terms ; providing, that, when any person, standing committed, by force of any execution issuing from any court, &c., on a judgment recovered by any person, shall complain, *&c., he shall be [*273] liberated in the manner prescribed by the act. This action is founded upon the idea, that, although Dyer, the judgment debtor, stood committed on execution, yet, as the process against him was for a fine or penalty, he was not within the meaning of the statute, and not entitled to the relief therein provided. Whatever may be the character of the process against him, whether civil or criminal, when judgment was rendered against him, it was a judgment for a debt ; and the precept, by which that judgment was to be executed, was an execution, so called in the act giving the jurisdiction of this subject to justices of the peace. The process is also in the name of an individual, and the debt is partly for his use ; and, indeed, the process is like, in its effects, to a popular action for the re coverv of a penalty for the breach of some statute. The judgment is [238] not, to pay a fine for the use of the Commonwealth for the breach of law ; but it ascertains a debt due to the clerk, and execution is awarded thereon, with which the person or property of the debtor may be taken, as in other cases. In all respects this comes within the description of cases in which the party is entitled to be released from prison, if unable to maintain himself there. If this had not been the intent of the legislature, it would have been expressly provided that the delinquent should be sentenced to pay a fine ; and then he would be imprisoned until the fine was paid, as in common cases. Although, in some views, this process may be considered as a criminal one, yet it has many features of a civil- action. The pleadings are in the same form, the judgment is entered up in the same manner, and execution is awarded against the goods, estate, and body ; in all which circumstances it differs from a criminal prosecution. The party charged is summoned, and not arrested ; be may appear by attorney, and is not bolden to appear personally. In short, we consider him as being in execution for debt, and so entitled to the privileges of the statute, under the provisions of which he was liberated from his imprisonment. Plaintiff nonsuit