Massachusetts Breweries Co. v. Colburn , 72 N.H. 472 ( 1904 )

It was the duty of the justices to administer the oath unless Colburn was guilty of fraud in relation to his property, within the meaning of section 6, chapter 236, Public Statutes. The fraud aimed at by this section is the debtor's conveyance of his property in trust for himself. Osgood v. Thorne, 63 N.H. 375. The purpose of chapter 236, Public Statutes, is to release from jail debtors who have no property, or who will assign what they have to their creditors, — not to commit them to jail for life if they have at some time acted fraudulently with respect to their property. The statute does not contemplate the refusal of the oath to a debtor simply because he was concealing his property at the time of his arrest on mesne process. Even upon an application for a discharge from arrest, the question is not, did he conceal his property at the time he was arrested, but is he now concealing it. Jacobs v. Stevens, 57 N.H. 610, 617. If Colburn had applied for a discharge from arrest at the return term of the writ, and the same facts had appeared as at the hearing before the justices, he would have been discharged (California Wine Co. v. Murray, 62 N.H. 597), and could not have been rearrested, either on the writ or on the execution. It is clear he ought not to be held on the execution under circumstances that would, on motion, authorize his discharge from arrest on the writ (California Wine Co. v. Murray, supra, 599), especially as it appears that he has used the concealed property in the payment of his debts.

Exception overruled.

All concurred.