153 Mass. 428 | Mass. | 1891
Under the statutes relating to the maintenance of bastard children, “ Whoever has been imprisoned ninety days for having failed to comply with an order of the court, as provided in this chapter, shall have the benefit of the laws for the relief of poor prisoners committed on execution,” upon giving certain notices. Pub. Sts. c. 85, § 20. This section places such a person, in this respect, in the position of a poor debtor; he is entitled to avail himself of the provisions in behalf of poor debtors. That is to say, he may apply to take the poor debtor’s oath. Mo further provisions being made in chapter 85 as to the terms and conditions upon which he may take this oath, it must be considered that he is to do so upon the same terms and conditions as a poor prisoner committed on execution may do it. But when a poor prisoner committed on .execution makes application to take the poof debtor’s oath, he is liable, as an incident of the proceeding, to be met by certain charges of fraud, which if established by proof will defeat his application, and also subject him to a further sentence. Pub. Sts. c. 162, § 52. Among these charges is the following: “ That, since the debt was contracted or the cause of action accrued, the debtor has fraudulently conveyed, concealed, or otherwise disposed of some part of his estate, witli a design to secure the same to his own use or defraud his creditors.” Pub. Sts. c. 162, § 17, cl. 2, and •§ 49. The poor debtor’s oath, and the magistrate’s certificate after administering it, both negative the existence of the facts stated in the above charge. §§ 39, 40. These charges of fraud are incidental to the application of the debtor to obtain his discharge; and it has sometimes been said that they are filed by way of answer or plea in bar to the application. They cannot be filed as a distinct and independent process. Everett v. Henderson, 150 Mass. 411. It has heretofore been determined that, if a husband who has been arrested on an execution issued for alimony in a divorce suit applies to take the poor debtor’s oath, his wife may meet such application by filing charges of fraud against him. Foster v. Foster, 130 Mass. 189. If one who has been convicted under the bastardy act, and committed to prison under the Pub. Sts. c. 85, § 15, seeks to obtain his discharge upon taking the poor debtor’s oath, as authorized in § 20, we find
The defendant, however, contends that the cause of action in the present case had not accrued at the time when his conveyances which are found to have been fraudulent were made. The child was begotten about December 1, 1886, and born on August 23, 1887. The conveyances were made on July 28, 29, and 30, 1887. On July 23, 1887, and previously thereto, the defendant had been threatened with a prosecution under the bastardy act, but no complaint was actually made till September 13, 1887, which was after the birth of the child. By virtue of the statute, the cause of .action accrues “ when a woman ... is pregnant with a child which if born alive may be a bastard.” She may then make a complaint, a warrant for the arrest of the putative father may then be issued, and he may then be arrested and held to answer. Pub. Sts. c. 85, §§ 1, 9. The original complaint is the institution of the proceedings upon the cause of action. It is liable, however, to be defeated, if the child is not born alive. Schramm v. Stephan, 133 Mass. 559. The proceeding is a peculiar one, specially authorized by statute, and originally could be instituted only by the mother, though now it may also be done by certain public officers, and it is in part for her benefit. The cause of action must be deemed to accrue at the time when the complaint may first be made.
The defendant further contends that the complainant, at the time of the conveyances made by him, was not his creditor within the meaning of the statute, and that, as he had no other creditors at the time, it cannot be said that he conveyed away his property with design to defraud his creditors. But if he designed to defraud future creditors, that is within the meaning of the statute. Subsequent creditors may avoid a conveyance made with an express intent to defraud them. Plimpton v. Goodell, 143 Mass. 365. Winchester v. Charter, 12 Allen, 606. In Woodcock v. Walker, 14 Mass. 386, it was held that the only
On the whole, it seems to us clear, that, since he is entitled to make application to take the poor debtor’s oath in order to obtain his discharge from imprisonment upon her claim, she must be deemed to be a creditor within the meaning of the statute providing for the filing of charges of fraud; and that, if
According to the terms of the report, the entry must be,
Verdict to stand.