Davis's Case.

G. Z. Adams, for the prisoner.

I. W. Richardson, for the judgment creditor.

GRAY, J. The decision of this case depends upon a consideration of the provisions of successive statutes upon the subject of the effect of the discharge of a poor debtor.

By the Rev. Sts. c. 98, § 14, a judgment debtor, arrested on execution, and discharged on taking the poor debtor's oath, was declared to be "forever exempted from arrest or imprisonment for the same debt," unless convicted of having wilfully sworn falsely upon his examination. It cannot be doubted that an arrest, either on mesne process or execution, in a subsequent action on the first judgment, must have been deemed an arrest "for the same debt," within the meaning of that provision; and that the special reasons on which it has been held in Faxon v. Baxter, 11 Cush. 35, Bradford v. Rice, 102 Mass. 472, and other cases there cited, that a judgment obtained after the commencement of proceedings in insolvency or bankruptcy is not the same debt for the purposes of proof or discharge of the original cause of action, did not apply. Willington v. Stearns, 1 Pick. 497. A similar interpretation must have been given to the Sts. of 1842, c. 56, § 4, and 1844, c. 154, § 7, by which it was declared that a poor debtor, discharged from arrest, either on mesne process or on execution, on taking the oath, should not "be arrested again for the same cause of action."

The St. of 1855, c. 444, § 7, prescribed the form of oath of a poor debtor arrested on execution, and provided that, “upon taking this oath, the debtor shall be discharged from arrest, and shall be forever exempt from arrest on the same execution, or upon any process founded on the judgment;" and § 12 provided that the form of oath of a poor debtor arrested on mesne process should be the same," and he shall never be liable to arrest for the same cause of action." The corresponding provisions of the St. of 1857, c. 141, §§ 9, 19, (which was the statute in force at the time of the enactment of the General Statutes,) were expressed in exactly the same words, adding in each section "unless he shall be convicted of having wilfully sworn falsely upon his examina tion."

Davis's Case.

In the Gen. Sts. c. 124, § 22, these provisions were consolidated, so as to include in one section both classes of poor debtors, those arrested on execution, and those arrested on mesne process, in this form: "Upon taking the oath," (of which one form is prescribed for all cases,) "the defendant or debtor shall be discharged from arrest or imprisonment, and shall be forever exempt from arrest on the same execution or any process founded on the judgment, or on the same cause of action, unless convicted of having wilfully sworn falsely on his examination." Reading this codification in the light of the previous statutes on the subject, it is manifest that the words "on the same execution or any process founded on the judgment" referred to the first class, and the words "on the same cause of action to the second; that these phrases were deemed equivalent; that the exemption from subsequent arrest was intended to be coextensive in the two classes of cases; and that neither in this section, nor in the earlier statutes which it embodied, was it intended to allow a debtor arrested and discharged on execution, any more than one arrested and discharged on mesne process, to be liable to arrest at the corresponding stage of a subsequent action to enforce the same original liability.

The Sts. of 1855, c. 444, § 14, and 1857, c. 141, § 29, provided that if the creditor at any time made default, after request, in the payment of the magistrate's fees, the magistrate might discharge the debtor, but contained no special provision as to the effect of a discharge in that contingency. In the Gen. Sts. c. 124, § 48, this provision was extended, and put in the following form: "If the plaintiff or creditor shall, at any time after request, make default in the payment of the fees, or if the plaintiff or creditor, or some one in their behalf, shall not attend the examination, the defendant or debtor shall, without examination and without payment of any fees, be discharged from arrest or imprisonment, and shall be forever exempt from arrest on the same execution or any process founded on the judgment; and a certificate of such discharge under the hand of the magistrate shall be annexed to the writ or execution." The considerations already mentioned as applicable to § 22 seem to us to be decisive in favor of the debtor when discharged under § 48.

Dana v. Wentworth.

The debtor in this case, having been so discharged from the execution issued on the original judgment against him, was not therefore liable to arrest on the execution issued upon the judgment subsequently recovered in an action on the first judgment. If the form of execution issued on the second judgment might properly, as suggested by Chief Justice Parsons in Cooke v. Gibbs, 3 Mass. 192, 198, have omitted the command to take the body, yet the plaintiff could not, by taking it out in common form, affect the defendant's exemption from arrest. That exemption was not a matter required to be pleaded before judgment, and is proved by the certificate made by the magistrate upon the first execution, as the statute requires. It follows that the defendant is entitled to be discharged by habeas corpus from his unlawful imprisonment. Gen. Sts. c. 144, §§ 1, 2, 18. Commonwealth v. Huggeford, 9 Pick. 257. Blake's Case, 106 Mass. 501. Ex parte Dakins, 16 C. B. 77. Prisoner discharged.

ELIZABETH E. DANA v8. THOMAS B. WENTWORTH.

The owner of a parcel of land bounding on a street conveyed it by a deed containing a condition that the grantee, or his heirs or assigns, should not build on the land within eight feet of the street. The grantee conveyed the land in several lots. Held, that the grantor could not maintain a bill in equity, for the benefit of the owners of some of these lots to restrain the owner of another from violating the condition, in the absence of evidence that the condition was imposed as part of a general plan for the benefit of the land granted and of other land on the street.

BILL IN EQUITY to restrain the defendant from building a house upon his land on Auburn Street in Cambridge, within eight feet of the street. The case, as it appeared from the pleadings and agreed facts, upon which it was reserved by Morton, J., for the consideration of the full court, was as follows:

The plaintiff, in 1834, conveyed to John Nudd a parcel of land in Cambridge, bounded north on Magazine Street, east on land of John McDuffie, south on other land of the plaintiff, and west on Auburn Street, upon the condition "that the grantee, nor his heirs or assigns, will not at any time build or permit to be built

Dana v. Wentworth.

any building upon said lot, nearer to either of said streets than eight feet, or nearer to the two other boundary lines than two feet." On April 8, 1864, long before which time this land had been divided into three lots, each fronting on Auburn Street, Mary W. Niles, wife of Stephen R. Niles, had become, by mesne conveyances, the owner of one of these lots, and on that day the plaintiff executed and delivered a deed in which, after reciting the conveyance to Nudd of the said parcel of land, and the condition in the deed thereof contained, she, in consideration of one dollar paid by Mary W. Niles, and other good considerations, released "to her, the said Mary W., and all and sundry the persons who hold any right, title, interest or estate in and to the aforedescribed piece of land or any parcel thereof, their respective parcels of said land according to their respective rights, titles, interests or estates, free and discharged from said condition forever. To have and to hold their several parcels aforesaid to them the aforesaid releasees, their heirs, executors, administrators and assigns, respectively discharged as aforesaid forever. Provided, nevertheless, that no building shall ever be erected or suffered to stand upon the aforedescribed piece of land or any parcel thereof contrary to the provisions of said condition; but a breach of this prohibition shall in no case work a forfeiture, but shall be conclusively deemed a nuisance, for which I, my heirs or devisees, shall be entitled to enter and abate without process of law, and shall likewise be entitled to damages against the party or parties offending, but against no others, and also to any and all other remedies at law or in equity." And this deed was recorded.

On June 18, 1872, Martin Whitney, who by mesne conveyances had become possessed of another of said three lots, conveyed it to the defendant.

At the time of the deed from the plaintiff to Mary W. Niles, the then owner of the defendant's lot did not know of said deed, and neither he nor any of those succeeding him in the ownership of the lot ever consented thereto.

The defendant built a house on his lot within eight feet of Auburn Street.

B. F. Jacobs, for the plaintiff.

Dana v. Wentworth.

J. W. Hammond, for the defendant.

GRAY, J. The clause in the deed from the plaintiff to Nudd, restricting building on the land thereby conveyed, is in the form of a condition; as a condition, it can only be taken advantage of by the grantor, and at common law; and this bill is not framed to enforce a forfeiture for breach of condition.

The plaintiff does not show that since that conveyance she is the owner of any land which may be affected by a disregard of the restriction. She is not therefore entitled to ask a court of equity to enforce the restriction for her own benefit.

Nor can the bill be maintained, even by treating it, as it was treated by both parties at the argument, as brought against the defendant for the benefit of other parties, who like himself derived their titles from Nudd.

There is nothing in the case to show that the restriction in the deed from the plaintiff to Nudd was part of a general plan for the benefit of the land thereby granted and other estates on the same street, or was inserted in the plaintiff's deed for the benefit of the grantee or his assigns, or was repeated in any grant or covenant executed by him or them or either of them. Under these circumstances, a purchaser from Nudd of part of the land so granted to him has no more right in equity than at law to enforce the restriction against the purchaser of another part of the same land. Jewell v. Lee, 14 Allen, 145. Keates v. Lyon, L. R. 4 Ch. 218. The judgment of the chancellor of New Jersey in Winfield v. Henning, 6 C. E. Green, 188, is inconsistent with the decisions in this Commonwealth and in England.

It is therefore unnecessary to consider the effect of the release made by the plaintiff to Mrs. Niles for, independently of that release, the Bill must be dismissed.