221 Mass. 49 | Mass. | 1915
These three cases were heard together by a judge of the Superior Court without a jury.
The debtors were arrested under R. L. c. 168, upon certificates and executions issuing from courts in Essex County other than the Police Court of Lawrence, before which court each of the debtors was taken and there entered into a recognizance under R. L. c. 168, § 30, and later made application to that court to take the oath for the relief of poor debtors.
The record of the poor debtor proceedings in the Police Court of Lawrence was in evidence and showed “the creditor by its attorney requested the debtor to be sworn and the examination to proceed on the debtor’s application. The clerk then stated that the entry fee of $3 for the notice had not been paid and the court requested the creditor to pay the same, and on the creditor’s refusing to pay said fee, the court refused to allow the examination to proceed and ordered the debtor discharged,” the record being the same in each of the three cases, with the exception of the names of the parties. Even if there was error in demanding the fee of $3 from the creditor, and upon his refusal to pay discharging the debtor, there was no default in the recognizance. The debtor contracted to appear before the court and abide its final order. That he has done. “It is immaterial whether or not the order proceeded from an erroneous view of the law on the part of the magistrate.” Mann v. Cook, 195 Mass. 440.
The order of the judge, in requiring the creditor to pay the fee established by law before examining the debtor, was in accordance with the statute. The obligation to pay the fee of S3 was upon the creditor plaintiff and not upon the debtor, and, the creditor refusing to pay it, the debtor was discharged properly. R. L. c. 168, § 74, provides, “Upon the commencement of any proceedings” relative to male debtors in police, district or municipal courts, an entry fee of $3 shall be paid, to be in payment for hearing applications for examination, continuances and the
Before 1891 the fees were the same in poor debtor cases whether the proceedings were before police, district and municipal courts or before other tribunals, and the plaintiff or creditor causing' the arrest was obliged to pay all of these fees in advance. Pub. Sts. c. 162, § 68. In 1891 the law was changed in so far as it related to police, district and municipal courts^ It was changed by doing away with the separate items as fees in these courts and directing that in such courts one fee of $3 should be paid. St. 1891, c. 313, now R. L. c. 168, § 74. The Legislature in making this change in the amount of the fee which was to be paid, did not intend to relieve the creditor of the duty of payment and this obligation remained where it was before the statute of 1891; that is to say, upon the creditor, and not upon the debtor, the only change effected by the statute of 1891 being a change in the amount of the fee to be paid, and making no change in the party upon whom rested the obligation of payment.
This is .further shown by the concluding paragraph of R. L. c. 168, § 75, “If the oath is not administered, such fees shall be allowed as part of the service of the writ or execution,” plainly showing that the fees for the examination were not to be paid by the debtor, and in R. L. c. 168, § 42, if the creditor makes default in the payment of fees, the debtor shall be discharged; “but if, after the oath has once been refused, the defendant or debtor again applies for the benefit thereof, the fees for such subsequent application or examination thereon shall be paid by him.”
In the section of the statute relating to female poor debtors, R. L. c. 168, § 14, the petitioner is required to pay the fee of $3 and the judgment debtor is required to pay this amount if she is found to have property.
It is manifest, in the matter of the statutory regulation of proceedings against poor debtors, that the creditor would not be entitled to recover these fees under the poor debtor proceedings as a part of the costs against the debtor, if the oath for his relief was refused him, unless the creditor was by law compelled to pay these fees in advance. The fact that the creditor is entitled to recover
If the debtor was brought before the same court from which certificates of arrest were issued, there probably would be no question that the creditor, in mating the application, would have to pay the fee. The difficulty arises in this case because the debtors recognized and appeared in another tribunal, and, while it may be contended that the fee which was paid when the arrest of the debtors was authorized covered all subsequent proceedings in that court or in any other court within the county in which the debtor was arrested, Dalton-Ingersoll Co. v. Hubbard, 174 Mass. 307, we think in a case like this, where. the debtor is brought before a court other than the one to which application was made for his arrest, it is in the language of R. L. c. 168, § 74, "the commencement” of a proceeding. The fee must be paid in advance and the responsibility is upon the creditor to pay to that court where the debtor recognizes and where he is to be examined. The judge of the Police Court of Lawrence, therefore, properly demanded of the creditor the fee required by law and upon his failure to pay, the debtor was entitled to his discharge. R. L. c. 168, § 42.
The clerk of the Police Court of Lawrence was permitted to testify in contradiction of the court’s records. This evidence was not admissible. A judicial record is conclusive and cannot be controlled by paroi evidence. “Its allegations and facts are not the subject of contradiction. . . . No averment can be made against them, nor can they be varied by paroi.” Sayles v. Briggs, 4 Met. 421, 423. Warburton v. Gourse, 193 Mass. 203. Tufts v. Hancox, 171 Mass. 148. Bent v. Stone, 184 Mass. 92. Niles v. Silverman, 216 Mass. 242. But this evidence was admitted de bene, and therefore there was no error. When evidence is admitted de bene esse, it is admitted only provisionally, and the objecting party, to avail himself of his exception, must ask to have the evidence stricken out. Doon v. Felton, 203 Mass. 267.
Exceptions overruled.
