Kellogg v. Underwood
Massachusetts Supreme Judicial Court
Contract, upon a poor debtor’s recognizance, entered into by Porter A. Underwood as principal and John F. Simmons as surety.
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Contract, upon a poor debtor’s recognizance, entered into by Porter A. Underwood as principal and John F. Simmons as surety. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon agreed facts, which recited that the plaintiff was entitled to recover judgment against the defendants for the penal sum of the recognizance sued on unless the following facts entitled the defendants to a finding in their favor, in which case judgment was to be entered for the defendants. Subsequently to the arrest of the defendant Underwood on the…
1Opinion of the CourtKnowlton, J.
By the common law, the arrest of a debtor on an execution and his voluntary release by the creditor are a satisfaction of the judgment, so that no alias execution can be taken out or other proceedings had under it. Coburn v. Palmer, 10 Cush. 273. Nowell v. Waitt, 121 Mass. 554. Kennedy v. Duncklee, 1 Gray, 65.
If we assume in favor of the defendants that this is the law to-day in Massachusetts, the principle is not applicable to the present case. Pub. Sts. c. 162, §§ 45, 46, provide for the support of a debtor who is confined in prison on mesne process or execution in a civil action, and who…
2Cases cited2 opinions
- Raymond v. ButterworthMassachusetts Supreme Judicial Court · 1885
- Nowell v. WaittMassachusetts Supreme Judicial Court · 1877
3Cited by4 opinions
- Thomson v. SleeperMassachusetts Supreme Judicial Court · 1897
- Crawford-Plummer Co. v. McCarthyMassachusetts Supreme Judicial Court · 1917
- Plympton's CaseMassachusetts Supreme Judicial Court · 1907
- Baehr v. DeckerMichigan Supreme Court · 1937