City Bank v. Norton , 48 Me. 73 ( 1861 )

The opinion of the Court was drawn up by

Appleton, J.

This is an action of debt on a poor debtor’s bond.

By c. 185, § 1, of the Acts of 1860, which is additional to c. 113 of the R. S., it was enacted that “ any debtor who, under the provisions of said chapter (113) shall have twice been refused his discharge from an arrest or imprisonment, shall not be entitled to his discharge from such arrest or imprisonment on any further examination, excepting upon application to a Judge of the Supreme Judicial Court, who, either in vacation or term time, may, after notice to the creditor or his attorney and a hearing of the parties, if he thinks proper, appoint a commissioner to take the examination and disclosure of such debtor,” &c. Under the provisions of this Act, a commissioner was appointed, an examination had and a certificate given. The debtor, who having been arrested on the execution, was released upon giving the usual bond, has taken the oath required by law, and, having obtained his certificate, claims that he is entitled to a discharge.

The question is, whether the terms arrest and imprisonment, embrace, as well those under arrest and imprisonment, as those who, having been arrested, were released from such arrest on giving bond; or, whether the statute is to be limited only to cases of actual arrest, the arrest continuing, and of imprisonment.

This Act, in its terms, is additional to R. S., 1857, c. 113. The poor debtor, enlarged on giving bond, may surrender himself. Though enlarged, on giving bond, he may yet be imprisoned under and in virtue of his original arrest.

. The word “ arrested,” in c. 113, § 29, has been held to apply, as well to those arrested and enlarged on giving bond, as to those under actual arrest. So, in § 43, in case of failure on an application “for a discharge from arrest and imprisonment,” costs are allowed. But, from an examination of that section, we think it was intended to embrace equally those who, having been arrested, have given bond, and those under arrest. No reason is perceived for making any distinction between those under arrest and those arrested and enlarged. From the use of the same words in other parts of c. 113, we think the design of the Legislature was, that this Act should be as general as the Act to which it is additional.

Judgment for defendants.

Tenney, C. J., and Cutting, May, Goodenow, and Davis, JJ., concurred.