Keough v. Grime

53 N.E. 135, 172 Mass. 519, 1899 Mass. LEXIS 837

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1899
• Status: Published

Opinion

Barker, J.

We are of opinion that the provision of Pub. Sts. c. 157, § 83, which provides that an insolvent debtor who obtains a discharge in insolvency shall “ 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,” includes proceedings in which a debt so provable is joined with a separate cause of action accruing after the debtor obtains his discharge. If the creditor desires to arrest the debtor as a means of enforcing satisfaction for the later debt, he must not join it with a debt upon which the debtor is exempted from arrest, or merge it in one judgment with such a debt.

As it now appears that the execution on which the respondent intimated that he would order the petitioner’s arrest was in fact a proceeding to enforce a judgment founded in part upon a demand provable in insolvency against the petitioner’s estate in the proceedings in which he had obtained his discharge, it is immaterial whether that fact had been made to appear to the respondent. Nor does that question appear to have been raised before the single justice, or to be open upon the appeal.

Order, that writ 'of prohibition shall issue, affirmed.