In re Kerrigan

• Citation: 33 N.E. 390,158 Mass. 220
• Parties: In re KERRIGAN.
• Decision Date: 01 March 1893
• Court: United States State Supreme Judicial Court of Massachusetts

158 Mass. 220

33 N.E. 390

In re KERRIGAN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1893.

Petition for habeas corpus by one Kerrigan. Petition denied.

Francis P. Curran, for petitioner.

S.H. Tyng and H.E. Fales, for respondent.

ALLEN, J.

The facts in this case, as ascertained partly from the recitals of the mittimus and partly from the oral statements of counsel, are as follows: The judgment creditors, having an execution against Kerrigan, obtained in an action of contract, made application to the fourth district court of eastern Middlesex for a certificate authorizing his arrest upon the charge that he “has property not exempt from being taken on execution which he does not intend to apply to the payment of the plaintiff's claim.” Pub.St. c. 162, § 17, cl. 1, Id. § 18. Upon the application notice was issued to Kerrigan to appear at a time and place therein fixed, and submit to an examination touching his estate. He accordingly attended before the court, and at the examination it appeared that, after the service of the notice, and pending the examination thereon, he made a payment of money not exempt from being taken on execution, with intent to prevent the same from being transferred or paid to the creditors or applied to the satisfaction of said execution, which payment was held by the court to have been in contempt of the court, under the provisions of St.1890, c. 128. ¹ Accordingly he was ordered to be committed to jail, there to be kept until discharged by said court, or otherwise according to law. These proceedings were all regular in form, but it is contended on Kerrigan's behalf that the statute is unconstitutional, as giving to an inferior court power to punish criminally without right of appeal to a higher tribunal, and as giving a right to punish as a contempt an act not committed in the presence of the court, and that the commitment to jail is invalid, not being for a fixed time, and there being no way for him to obtain his discharge from imprisomnent. These objections are founded on a misapprehension of the statute, which is merely in aid of other provisions relating to the collection of judgment debts. Formerly executions against men usually ran against the body. There is nothing unconstitutional in imprisonment for debt, though it is now very much limited by statutes. Upon a charge like that made by the judgment creditors in the present case, no arrest on execution could now be made, unless the court should be satisfied that there was reasonable cause to believe the charge true, and should indorse a certificate thereof upon the execution. No such certificate could be given without first allowing the judgment debtor whose arrest was sought an opportunity to be examined. But if, after notice, such debtor should fail to appear, the court might act upon proofs produced by the judgment creditors. If the court should be so satisfied, and should make the certificate authorizing the arrest, and if the arrest should accordingly be made, such judgment debtor, after being so arrested, might still, on proper proceedings, be admitted to take the poor debtor's oath, or might be relieved from arrest in certain other ways specified or recognized in the statutes. Pub.St. c. 162, §§ 17, 18, 31, 44-46, 48; Id. c. 157, § 83. If one arrested on an execution makes an application to take the poor debtor's oath, not only may the whole subject of a charge like that upon which Kerrigan's arrest...