Hall v. Justices of the Municipal Court

41 N.E. 64, 164 Mass. 155, 1895 Mass. LEXIS 202

• Court: Massachusetts Supreme Judicial Court
• Decided: June 21, 1895
• Status: Published

Opinion

Holmes, J.

The petitioner suffered judgment by default on a debt for necessaries. He had a discharge in insolvency before the action was brought. The debt was provable, but was not proved in the insolvency proceedings, and therefore was not discharged. Pub. Sts. c. 157, §§ 26, 84. But by § 83 the debtor, after obtaining his certificate of discharge, “ shall also be forever thereafter discharged and exempt from arrest or imprisonment in any suit or upon any proceeding for or on account of a debt or demand provable against his estate.” The words could not be stronger or more explicit. They apply to an arrest in the suit on which judgment was recovered against the petitioner. Everett v. Henderson, 150 Mass. 411, 414. This is not denied, but it is argued that he lost his right by not pleading the discharge in that suit. The statute does not say so, but on the contrary gives the protection in absolute terms. No doubt when a discharge is a bar to a judgment it is proper to plead it. But, as pleadings are addressed to the judgment, not to the execution, as the plaintiff in the suit mentioned was entitled to judgment, and as a judgment for a debt commonly says nothing about arrest or the modes by which it is to be enforced, there is not even a technical ground for the argument. The petitioner was not called on to move until an attempt was made to arrest him. When that attempt was made, the discharge was brought to the attention of the court on the record, and thereupon it had notice of a fact which had ended its power to authorize an arrest. Writ to issue.