Foster v. Collamer , 10 Vt. 466 ( 1838 )

The opinion of the court was delivered by

Phelps, J.

As a general rule, if the creditor discharge his debtor from arrest, it is equivalent to a discharge from imprisonment, and virtually discharges the debt. The reason is, that the law will not permit its process to.be trifled with, or perverted to oppressive or vexatious purposes.

But in order to bring a case within this rule, the arrest must be unequivocal, clearly made out, and must be for the purpose simply of executing the process. In this instance the arrest, if it can be called such, was provisional merely, and with the intent on the part of the officer to execute the process, upon a contingency only. The first object on the part of the officer, in exerting his authority over the debtor, was to bring about an interview between the debtor and creditor, for the purpose of an arrangement, which might supercede the necessity of executing the process, and the debtor accompanied the officer evidently with the same purpose. It is true, that the officer avowed his intention to commit the debtor, in case no such arrangement was effected. But so long as the proceeding of the officer was with a view to an adjustment between the parties, it can hardly be regarded, in strictness, as the execution of the process. The intent and purpose of the proceeding is all-important. If the officer insist upon the debtor’s accompanying him to the creditor, this is no arrest in the execution oj process. If he take him into custody for the purpose of taking him to gaol, it is an arrest. When, therefore, the creditor in this instance forbade the commitment of the debtor, he did no more than was contemplated in the outset, and the contingency happened, upon which both the officer and debtor understood the arrest should be waived. It is extremely doubtful, in this view of the subject, whether the proceeding of the officer can be deemed, m strictness, an arrest.

But another consideration is, in our view, decisive. In our opinion, the consent of the debtor to his discharge is to be inferred. * If he were discharged at his own request, or by mutual assent, there can be nothing vexatious or oppressive in the proceeding, and we see no good reason why, in such case, the debt should bo treated as satisfied, or the creditor debarred of a future remedy.

We think it would not be for the interest of debtors, nor, indeed, for that of the creditor, to hold otherwise. The law allows to the parties a certain period within which to satisfy the execution before the return day. It would be a hardship upon all, if the officer were not permitted to indulge the debtor during this period. We are, therefore, of opinion that the complainant in this case is not entitled to be relieved, if a jury should find that the commitment was countermanded, or at his request.

The judgment of the county court is, therefore, reversed. There is a rule, however, in the case authorizing a judgment in chief for the defendant. These rules are, indeed, binding upon the parties, but not necessarily imperative upon the court. Where the state of the case renders such a judgment, as the rule contemplates, proper, the court will render it. But if, at the same time, the case turns upon points not anticipated when the rule is made, and, in the opinion of the court, requires the further action of a jury, they will remand it for a new trial. This cause is remanded accordingly.

Collamer, J., being related to one of the parties, did not sit in this case.