Kelley v. Morris , 63 Me. 57 ( 1873 )

Appleton, C. J.

The petitioner, on the ninth of July, 1855, recovered judgment founded on a contract for six dollars debt or damage, and three dollars and four cents cost, before the police court of the city of Portland against one Edwin O. Greely, upon which execution issued, but no part of said judgment has been satisfied.

March 22, 1873, the petitioner commenced his action on said judgment in the municipal court of Portland, of which the respondent is judge, and on the last day of said March, said Greely was defaulted, and judgment rendered against him and in favor of the petitioner for eighteen dollars and ninety-six cents debt, and three dollars and forty-seven cents, cost of suit.

The petitioner duly demanded an execution running against the body of his debtor, which the respondent refused to issue, whereupon the plaintiff petitioned this court for its writ of mandamus, commanding him to issue such execution on said judgment.

By R. S., c. 113, § 2, “any person.....may be arrested and held to bail or committed to prison on mesne process on contract express or implied, if the sum demanded amounts to ten dollars, or on a judgment on contract, if the debt originally recovered and remaining due is ten dollars or more, exclusive of interest,” &c.

It is obvious that it was the intention of the legislature that no one should be arrested on mesne process when the “sum demanded” in the writ, or the debt originally recovered and due, exclusive of interest, does not amount to ten dollars.

By § 19, it is provided that “no person shall be arrested on an execution issued on a judgment founded on a contract express or implied, when the debt is less than ten dollars, exclusive of costs; or on a prior judgment on contract when the amount of the original debt remaining due is less than ten dollars, exclusive of costs.”

The first provision in § 19 corresponds with the first in § 2. The debt, or the sum demanded, must both be less than ten dollars.

The debt in the prior judgment on which this suit is founded was but six dollars. With the addition of interest to the present time it exceeds ten dollars. Shall execution run against the body of the debtor?

Is “the amount of the original debt remaining due” less than ten dollars ? The amount of the debt remaining due is one thing. The “amount of the original debt remaining due” represents something materially different. The amount of the debt remaining due includes interest. The amount of the original debt remaining due excludes interest, for interest is never part of the debt in its origin. It is what subsequently accrues.

The amount refers to the original debt as stated in the prior judgment, and not to the debt with the increment of interest. It requires that of the original debt, as recorded in such judgment, there shall be an amount due not less than ten dollars.

There is no perceptible reason why there should be a difference in the debt for which one may be arrested on mesne process, or on execution; and the antecedent legislation on this subject shows that the legislature never intended there should be any difference between the two cases.

Prior to 1835, the amount for which a debtor on contract was exempted from arrest was five dollars. In that year, by c. 195, § 1, it was enacted that “no person shall be arrested on any suit founded on contract, express or implied, bond, or other speciality, or on a judgment on contract when the sum demanded, nor in any execution issued on any judgment when the debt or damages are less than ten dollars, nor on any suit on a judgment or an execution issued on a judgment founded on any prior judgment, when the original debt or damages are less than ten dollars.”

It is apparent that by this statute, the “sum demanded” on the original debt, to authorize an arrest must not be less than ten dollars.

In the revision of 1840, this section was broken up and its parts distributed- under the several heads of arrest on mesne process and on execution, and the language then adopted has been continued in the subsequent revisions without verbal alteration to the present time. R. S. of 1840, c. 148, §§ 1, 2, 18.

Now, in the process of revision and in the distribution of the several parts of former statutes, verbal changes may take place, when it is obvious that no change in the meaning was intended. In Hughes v. Farrar, 45 Maine, 72, it was held that in the revision of statutes, a mere change in the phraseology is not to be deemed a change in the law, unless such appears to be the evident intent of the legislature. The legislation of the State, from 1835 to the present time, has been more and more favorable to the debtor class. The changes since made have been in that direction. It is not to be believed that such an anomaly was intended as that for the same debt one may be arrested on execution, and not arrested on mesne process. The same rule, rather, applies in each case. This, we think, is the true construction of the statute and best conforms to the will and design of the legislature.

Writ denied.

Costs for the respondent.

Cutting, Dickerson, Barrows and Danforth, JJ., concurred.