Foster v. Collamer
Supreme Court of Vermont
This case was heard upon the following bill of exceptions, viz;— This was a -writ of audita querela, brought to set aside an execution in favor of defendant, against plaintiff, dated 2d of September, 1835, on which plaintiff was committed to jail. Plea, the general issue, and trial by jury.
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This case was heard upon the following bill of exceptions, viz;— This was a -writ of audita querela, brought to set aside an execution in favor of defendant, against plaintiff, dated 2d of September, 1835, on which plaintiff was committed to jail. Plea, the general issue, and trial by jury. The plaintiff gave evidence tending to show, that the defendant recovered the judgment, on which the execution issued and took out a former execution, dated the 20th of July, 1.835, and put the same into the hands of an officer, to levy and collect, on the third of Septenber, 1835. The officer testified,…
1Opinion of the Court
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…
2Cited by2 opinions
- Willard v. LullSupreme Court of Vermont · 1848
- Vesanen v. PohjolaSupreme Judicial Court of Maine · 1944