Bennett v. Justices of the Municipal Court , 166 Mass. 126 ( 1896 )

Holmes, J.

The exemption from arrest or imprisonment in any suit or upon any proceeding for or on account of a debt or demand provable against an insolvent’s estate, granted by Pub. Sts. c. 157, § 83, depends on the character of the origin"1 debt or demand, and is not affected by the fact that a judgment has been taken upon it. Choteau v. Richardson, 12 Allen, 365. Hall v. Justices of the Municipal Court, 164 Mass. 155.

It is true that it has been considered that a discharge does not affect a debt provable at the beginning of insolvency or bankruptcy proceedings, if it is allowed to pass to judgment pending those proceedings. Sampson v. Clark, 2 Cush. 173. Woodbury v. Perkins, 5 Cush. 86. Faxon v. Baxter, 11 Cush. 35, 37. Bradford v. Rice, 102 Mass. 472, 473. And also that in

I some cases the original debt loses its exemption if it is sued to judgment before the bankruptcy proceedings are instituted. Wolcott v. Hodge, 15 Gray, 547. The first cited decisions, so far as they apply to the bankrupt laws, are disapproved by the Supreme Court of the United States, seemingly not on the special grounds adverted to in Ray v. Wight, 119 Mass. 426, 428, but on general reasoning. Boynton v. Ball, 121 U. S. 457, 466. Those decisions can be reconciled with the other cases in this State, but we deem it clear that they do not govern the case at bar. The questions of freedom from arrest and of discharge are different. The language of § 83 extends to imprisonment on judgments whenever recovered, if the original demand was one which might have been proved. For § 83 applies indiscriminately to instances in which the discharge would not be a bar, and in which, therefore, the plaintiff is entitled to judgment notwithstanding the pendency of insolvency proceedings, (Hall v. Justices of the Municipal Court, 164 Mass. 155,) and to those in which the discharge would have been a bar but for the judgment ; and therefore it must be given the same effect in either case. Petition dismissed.