Bates v. Tallman , 35 Me. 274 ( 1853 )

Shepley, C. J.

— The only defence insisted upon in the argument was, that the principal debtors have been arrested on execution and voluntarily discharged by the creditor; and that this amounts to a satisfaction of his debt.

It is agreed, that they were arrested, “and liberated from said arrest by giving the poor debtors’ bond.”

This release is one to which the debtors were entitled by the provisions of the statute, c. 148, <§. 20. It was not a voluntary one by the creditor, but an involuntary one made by the officer in obedience to law. By the provisions of the forty-second section no such release can impair the right of the creditor to his debt or demand ; and by this release the debt was not discharged.

This however is not the release, upon which the defendant relies as having such an effect. He contends, that the creditor by taking a mortgage of property from one of the principal debtors at the time, when they made their disclosures, and by surrendering their bonds given to procure their release from arrest, voluntarily discharged them from arrest ; and that such discharge, not having been made in conformity to the provisions of the fifty-ninth section, the creditor is not protected from the effect of it at common law.

This argument fails, because it has no foundation, upon which it can rest.

The debtors having been before released from their arrest by giving bonds, were no longer under arrest. There was no existing arrest, from which the proceedings referred to could operate as a release. Those proceedings could only operate to discharge the bonds given to procure their release. Such bonds are only collateral security for the debt; and the creditor may refuse to prosecute them or may discharge them without relinquishing his debt.

The release provided for by the fifty-ninth section, is not one which takes place after the debtor has been by law released upon giving bond. It is one made to release him from arrest or imprisonment, before he has otherwise obtained it. Those provisions are not applicable to a case like the present.

Defendant defaulted.

Howard, Rice and Hathaway, J. J., concurred.