Dissenting Opinion
Mtjrchie, J.I dissent from the foregoing opinion with very real reluctance because my conviction is as strong as that declared therein that the result does justice between party and party. A debtor who secures his release from imprisonment by a promise to pay which he fails to keep is entitled to no sympathetic consideration against his creditor’s subsequent process seeking to reach his property. That fact notwithstanding, my belief is even more compelling that the issue as to whether this plaintiff be held to have forfeited his right to collect something less than $200 by his failure to use the safeguard authorized by R. S. (1930), Chap. 124, Sec. 60, pales into insignificance by comparison with that as to whether this Court will indulge in judicial legislation in his behalf.
All of our statute law pertinent to the present issue is contained, as at all times since the enactment of R. S. 1857, in a chapter entitled “Relief of Poor Debtors.” Only two sections are directly involved and these are quoted in full in the majority opinion, R. S. (1930), Chap. 124, Secs. 60 and 61. That opinion asserts, however, that prior to 1857 legislation of con*230trolling force, contradictory of the word “written” as it appears in Section 60 and as it had appeared since 1822, was contained in R. S. (1841), Chap. 32, wherein the statutes dealing with paupers and their settlement and support were assembled. Why the provisions of Section 33 of that Chapter, authorizing a creditor subjected to process to recover the expense of maintaining his debtor, a pauper, in prison to release such debtor without formality, should have controlled the plain language of a statute dealing with imprisoned debtors who are not paupers, even while it appeared therein, is not disclosed in the opinion (nor is any attempt made to show how its priority effect continued after its repeal), but the declaration is definite that since Massachusetts Laws 1780-1807, Yol. 1,401, “An Act for the Relief of poor Prisoners who are committed by Execution for Debt,” enacted November 19, 1787, and Massachusetts Gen. Laws, 1799-1821, Chap. 94, enacted February 5, 1820, were in effect here when Maine became a state:
“it was ... established law here that a poor debtor might be released either on his taking the oath prescribed by the statute or by order of the creditor, and in neither case did such release operate to discharge the debt.”
Our early legislatures must have taken a different view for the first enacted the provisions of Section 2 of the Massachusetts statute of February 5,1820 in Stats. 1821, Chap. 122, Sec. 13, and the second purported in P. L. 1822, Chap. 209, Sec. 29, to repeal, as respects this State, that enacted November 19th, 1787. It was this P. L. 1822, Chap. 209, which first contained the provision authorizing a creditor to release his debtor imprisoned on execution for debt by a written permission without affecting his right to reach the debtor’s property. It was this which first gave sanction by Maine legislation for the release of a debtor held on execution through the medium of a poor debtor’s oath.
The opinion concedes, following declaration that estab*231lished law rendered all action unnecessary, that subsequent to our statehood “our legislature took care of the subject by statute.” Five enactments are cited. The first is Chapter 122 of the Statutes of 1821, Sec. 13, but this relates solely to the release of an imprisoned debtor having the status of a pauper, and P. L. 1831, Chap. 520, deals only with the release of persons imprisoned for debt by operation of law, i.e., through disclosure and oath. It is only in two of the three remaining instances that the legislature dealt with the release of an imprisoned debtor by the voluntary action of his creditor, P. L. 1822, Chap. 209, Secs. 27 and 28 (the latter of which like Stats. 1821, Chap. 122, Sec. 13, applied only to paupers) and P. L. 1828, Chap. 410, Sec. 3, except that the fifth act cited, P. L. 1835, Chap. 195, provided again in Section 15 for the release of pauper debtors. The sections which dealt with paupers were long since repealed and it is manifest that in both cases where provision was made for the voluntary release of a debtor who was not a pauper the legislative intent was to impose a definite requirement that the releasing creditor who desired to retain the validity of his claim against the debtor’s property must proceed by a wiitten permission. This last law, like that of 1831, provided for releases other than by a creditor’s consent, and Section 12, the “specific provision” of which is quoted in the opinion, in its original enactment, as in R. S. (1841), Chap. 148, Sec. 42 (when it last appeared in our statutes), bore not even a remote connection with such releases as were made by the voluntary action of a creditor. It is here more than anywhere else, in my view, that the majority opinion misconceives our legislation on this subject matter and the litigation that has arisen under it. The majority opinion quotes at length from Jones v. Jones, 87 Me., 117, 32 A., 779, including the statement that our law stood just the same, following the enactment of P. L. 1835, Chap. 195, as prior thereto and that it was unchanged when R. S. (1841), Chap. 114, Sec. 42 was omitted from the revision of 1857. There can be no doubt on either *232point so far as the release of a debtor imprisoned on execution is accomplished by operation of law, but no release by volition of the creditor was involved in either the Jones case or in Spencer et al. v. Garland, 20 Me., 75, cited therein, where the distinction between such a release and one by operation of law was clearly drawn. Our Court has never recognized it as a principle of the common law that imprisonment of a debtor satisfied the debt on which he was imprisoned, but it has heretofore uniformly declared that at common law arrest or imprisonment coupled with voluntary release did that very thing. So long as creditors were holden to pay the board of the debtors they had caused to be confined who were not merely debtors but paupers, legislation authorized their release without formality and with the creditor’s claim unimpaired so far as property was concerned, but there has never been a time when Maine has seen the semblance of sanction in legislation whereby an imprisoned debtor who was not a pauper might be orally released by his creditor without elimination of the debt except in the short interval between the statutory revisions of 1841 and 1857 and that semblance was more apparent than real.
R. S. (1841), Chap. 148, Sec. 61, reads:
“Whether such indorsement be made on the executions or not, the judgment, on which the same was issued, may be revived or continued in force with the said exception, by an action of debt, or on scire facias to be brought, as in other cases of judgment.”
There is no suggestion in the revision that this provision was contained in our 1821 statutes of that it was founded on legislation enacted between 1821 and 1840. Nor was it. If R. S. (1841), Chap. 1-48, Sec. 61 was still in effect, it might be claimed that the present decision is rendered under it because of the express recital that regardless of the indorsement required by what is now R. S. (1930), Chap. 124, Sec. 61, or the lack of it, a judgment might be revived or kept in force, although the *233common sense interpretation of it would seem to be that provided the facts were such as to make indorsement within the statute proper, the lack thereof would not be fatal. In the present case the deficiency is not the lack of an endorsement but the fact that no written permission was given for the release. The creditor did not fail to secure the formality required by Section 61. He failed to meet the condition requisite imposed by Section 60 which would have entitled him to obtain such an indorsement. Interpretation of that section, however, cannot be said to be involved for if we assume that it became a part of our law by the action of the revisors in 1841 in writing it into the chapter without the sanction of earlier legislation, we must grant that it was repealed with equal efficiency when the revisors in 1857, by implication at least, restricted the availability of keeping the judgment alive to those cases where a certificate of the cause of the debtor’s discharge was in fact indorsed on the execution, or where the facts would justify an indorsement, if requested, II. S. 1857, Chap. 113, Sec. 34.
The decision can draw no present support from recital in the opinion that:
“It would be illogical to hold that a discharge of a debtor on the oral direction of the creditor would amount to a satisfaction of the debt, if the creditor could accomplish the same result without discharging the debt merely by failing to provide for the support of the debtor in jail”
because the alternative method of discharging a debtor has not been available since the statute revision of 1857. It may in fact have been unavailable since the enactment of P. L. 1842, Chap. 23, which made written complaint by the imprisoned debtor that he was unable to pay the expenses of supporting himself in prison a prerequisite to demand on the creditor therefor. I quote the comment, however, not merely to show the antiquity of its availability, but to record definitely that if it implies assumption that this Court may pass upon the logic *234of legislation generally or interpret R. S. (1930), Chap. 124, Sec. 60, as if the word “written” did not appear therein because the requirement of a writing would be illogical, I am not only unable but entirely unwilling to subscribe thereto. With the logic or the wisdom of governmental policy as fixed by the legislative department of government, the judicial department has no concern and it should avoid with scrupulous care even the semblance of interference.
The foregoing is based on assumption that the majority opinion is grounded in an interpretation of R. S. (1930), Chap. 124, Sec. 60, which disregards entirely the word “written.” Such is the distinct trend of the language used until attempt is made to distinguish judgments from the executions issued thereon. If this attempted distinction is presented as an alternative ground, it seems to me equally untenable although it may be said for it that it involves no attempt at such a bold usurpation of legislative power as definitely ignoring the statutory word “written.” It is accomplished by reference to five cases decided in this Court and the grouping of them into two classes Miller et al. v. Miller, 25 Me., 110, and Clement et al. v. Garland, 53 Me., 427, are said to involve the validity of executions and the claim is asserted that R. S. (1930), Chap. 124, Sec. 61, relates to nothing more, whereas Spencer et al. v. Garland, supra, Moor v. Towle, 38 Me., 133, and Jones v. Jones, supra, are declared to have been decided on the ground that they presented actions of debt on the judgments involved. It ought to be sufficient answer to this claim of distinction so far as the Spencer and Jones cases are concerned that it was not drawn in either of them and that neither presented facts showing the release of an imprisoned debtor by the voluntary action of his creditor. Neither was decided on the principle that an action of debt would lie on a judgment under which an execution, earlier used to imprison the debtor, had lost its force as a precept. Both declared that arrest followed by discharge through the filing of a bond left the creditor free to proceed *235against the debtor’s property. P. L. 1835, Chap. 195, was construed in both cases and what is now R. S. (1930), Chap. 124, Sec. 60 in the latter. This would have been entirely unnecessary if its provisions were applicable only to executions, but it may be said further that our court as constituted when all of these decisions were handed down drew no distinction whatsoever between a judgment and an execution issued thereon. In the Spencer case it is stated that a voluntary discharge “might operate as a satisfaction of the judgment” (not an execution), and in the Jones case attention is centered on the contention that “the judgment was satisfied” (not the execution). The same is true of the Miller and Clement cases, both of which refer to the common law principle concerning “satisfaction of the debt.” The Moor case it should be noted deals with an action of debt on a judgment instituted before the debtor was imprisoned.
The statements quoted from our own decisions all relate to the common law principle regulating the rights of a creditor against his debtor after resort to imprisonment in an attempt to collect his debt, which is the very situation presented by the instant case and with which the statute interpreted was intended at the time of enactment to deal. Our problem most certainly is determination of the extent to which the common law has been changed by legislation, and in the Miller case the view was recorded that since the legislature had provided a remedy for the common law principle developed when there was no machinery by which an imprisoned debtor might secure his release, it would be “improper for the Court to attempt to provide” therefor in some other manner.
Massachusetts and Vermont have modified the rule of common law in manners not consistent with each other or with that applicable in Maine. Neither has a law comparable with our own R. S. (1930), Chap. 124, Sec. 60. In Massachusetts it has been the law “ever since debtors were permitted to be discharged from imprisonment on taking the poor debtors’ oath” *236that the judgment remains in full force. Cheney et al. v. Whitely, 9 Cush., 289; Raymond v. Butterworth, 139 Mass., 471, 1 N. E., 126. The first of these cases records that a judgment creditor may sue on his judgment “even whilst the debtor is in confinement . . . discharging him from imprisonment within seven days.” Vermont has made special provision for the very situation presented in the instant case. There it is provided by statute that the release of an imprisoned debtor by his creditor upon a “promise to pay the debt” has no effect thereon. Willard v. Lull, 20 Vt., 373. These decisions of the courts of our neighbor jurisdictions are all cited in the majority opinion. The Vermont case also declares:
“if it were not for the statute, he (the creditor) would have no farther remedy; and with that, he can only have the remedy which the statute gives.”
At common law the plaintiff herein having caused his debtor to be imprisoned on execution, and given consent to that debtor’s release, was barred from later attempt to collect either on the execution used to effect the imprisonment or on the judgment under which the execution was issued. The legislature has said, in the only enactment dealing with such a situa-r tion which stands unrepealed upon our statute books, that if the discharge of the debtor was accomplished by a 'written permission the effect is the same as if the discharge had been through disclosure.-Ño further or other provision applicable to the circumstances has been contained in our. law for more than four score years. It seems to me to be pure fiction to say either that no legislation is necessary to authorize a creditor in the position of this plaintiff to maintain an action of debt on a judgment already used, via an execution issued thereon, to imprison his debtor, or that It. S. (1930), Chap. 124, Sec. 60 (the provisions of which trace back to P. L. 1822, Chap. 209, Sec. 27 and P. L. 1828, Chap. 410, Sec. 3) may be interpreted, because of inconsistency with a law or laws effective in Massa*237chusetts when this State was separated from it, or with some other provision enacted concurrently (which could relate only to the 1822 law where Sec. 28 authorized the release of a pauper without formality), or because any law, especially any law since repealed, was on our statute books when it was originally enacted, as if the word “written” did not appear therein.