112 Mass. 394 | Mass. | 1873
The question in this case depends upon the construction to be given to the somewhat complicated provisions of the 124th chapter of the General Statutes, and can hardly be made intelligible without stating the substance of the sections which bear upon it.
By §§ 21, 22, in order to entitle the debtor to be admitted by a magistrate to take the poor debtors’ oath, and to be thereupon discharged and exempted from arrest on the same execution, the debtor must swear, and the magistrate must be satisfied and certify, that the debtor has not any estate, real or personal, to the amount of twenty dollars, except the estate, goods or chattels, which are by law exempt from being taken on execution; and that he has not any other estate now ¿onveyed, or concealed, or \n any way disposed of, with the design to secure the same to his >wn use or to defraud his creditors.
But if any one of the charges named in § 5, except the first, is made, either as therein provided by affidavit on the execution, or in writing' upon oath pending the examination of the debtor, and he pleads not guilty thereto, the judgment of the magistrate upon such charges is not conclusive, but either party may appeal to the Superior Court, and have a trial thereon by a jury. §§ 31» 32. If the debtor is the appellant, he must recognize with sufficient sureties not only to prosecute his appeal, but that if final judgment is against him, he will within thirty days thereafter “ surrender himself to be taken on execution and abide the
By § 17, the magistrate, pending the examination of the debtor on his application to take the oath, may accept his recognizance with surety to appear at the time fixed for his examination, and from time to time till it is concluded, and to abide the final order of the magistrate thereon; but “ no recognizance under this chapter, except in case of appeal under § 33, shall be accepted at any time after the oath has been once refused to the debtor.”
The charges of fraud, when made by the creditor, are set up by way of answer to the debtor’s own application to be admitted to take the poor debtors’ oath, and are tried and determined in the first instance by the magistrate, in connection with that application. Stockwell v. Silloway, 100 Mass. 287, and 105 Mass. 517. But there is a material difference, between the two branches of the hearing, in the ulterior proceedings and the final consequences. The simple issue, whether the debtor has in his possession property not exempt by law from being taken on execution, is in all cases summarily and conclusively decided by the magistrate; and if no charges of fraud are made by the creditor, the question whether the debtor has any other property conveyed or concealed or in any way disposed of, with the design to secure the same to his own use or to defraud his creditors, may be decided in the same way. Hayward, petitioner, 10 Pick. 358. Russell v. Goodrich, 8 Allen. 150. But if the creditor elects to make a distinct charge of fraud against the debtor, either for so conveying or concealing or disposing of his estate, or for doing either of the other acts suosequently enumerated in § 5, upon conviction of which the debtor is not only deprived of any ben
Under the similar provisions of the Revised Statutes it was held that if the magistrate decided in favor of the debtor and the creditor appealed from his decision upon the charges of fraud, the debtor could not be imprisoned pending the appeal; and one reason assigned by the court for so holding was that the opposite construction would occasion an extended imprisonment of the debtor, continuing perhaps for years, until the final determination of the case in an appellate court. Ingersoll v. Strong, 9 Met. 447. Collamore v. Fernald, 3 Gray, 318.
If the magistrate refuses to admit the debtor to the oath, upon the ground that he has property in his possession not exempt from being taken on execution, and also finds against him on the charges of fraud, and the debtor appeals, he is not entitled to be at large pending the appeal, because upon the question whether he has property in his possession the decision of the magistrate is anal, and is of itself a sufficient reason for refusing him the oath and detaining him in custody, whatever may be the decision, either of the magistrate, or in the appellate court, upon the charges of fraud. Fletcher v. Bartlett, 10 Gray, 491.
In the present case, the magistrate, as appears both by his record of the case, and by his certificate upon the execution, has decided the first issue, and the only issue which is within his final and exclusive jurisdiction, in favor of the debtor. On hearing and determining, “in connection,” as his record states and the statute requires, “with the examination of the debtor on his application to take the oath,” of the issue made upon the charges of fraudulently conveying, concealing and disposing of part of his property with intent to secure the same to his own use and to defraud his creditors, the magistrate has further found him guilty of so fraudulently conveying part of his property, and not guilty of the residue of the charges of fraud; and, as appears by the certificate made at the same time on the execution, refused hiri>
If, upon the trial in the Superior Court, the issue shall be found and decided in favor of the debtor, he will be thereby adjudged not to have made a fraudulent conveyance of his property with design to secure the same to his own use or to defraud his creditors, and, by necessary implication, not to have any property so conveyed—which would be a conclusive adjudication between the debtor and the creditor, in the higher court, of the only issue which had been found against the debtor in the lower one.
Under the provisions of the Gen. Sts. c. 124, §§ 31-34, the judgment in the Superior Court upon charges of fraud was equally conclusive upon the parties, whether it was in the debt- or’s favor or against him. In Dennis's case, 110 Mass. 18, it was decided that such a judgment against the debtor was a conclusive adjudication of his guilt, and a bar to any new application by him to be admitted to take the poor debtors’ oath. The St. of 1872, c. 281, passed since that decision, amends § 34 of the Gen. Sts. c. 124, by adding a proviso that “ the defendant, or debtor, after the expiration of any sentence, may renew his application for the oath for the relief of poor debtors, as though he had not been found guilty and sentenced.” But that statute merely enlarges the privileges of a debtor who has been found guilty and served out his sentence.
While the proceedings upon charges of fraud are still pending, or after they have resulted in a judgment in favor of the debtor, the case is governed» by the provisions of the General Statutes. The magistrate, having once heard and decided the case, has no turther jurisdiction thereof. Russell v. Goodrich, 8 Allen, 150.
The recognizance required by § 33, and the only recognizance which § 17 allows to be accepted after the debtor has been refused the oath, obliges the debtor not only to prosecute his appeal, but also, if the final judgment is against him, to “ surrender himself to be taken on execution and abide the order of the court,” or pay the whole amount of the original judgment upon which the execution was issued. An imprisonment of the debtor pending the appeal is not requisite to secure any just rights of the creditor; for if the debtor shall obtain in the appellate court an acquittal from the charges of fraud, which is a conclusive disproof of the facts alleged in those charges, those facts can no longer be asserted by way of justifying his imprisonment in any vnanner by virtue of the execution; and if he shall be found guilty of any of the frauds charged, the statute declares that “ he shall have no benefit from the proceedings under this chapter,” and the very terms of his recognizance will require him, unless he pays the debt in full, to surrender himself to be taken on execution, as well as to abide the order of the court sentencing him to imprisonment by way of punishment, and clearly imply that he is to go at large until he so surrenders himself. The opposite construction would subject the debtor to the inconvenience, not to say oppression, pointed out in Ingersoll v. Strong above cited. It would be an anomaly in the law, not to be in
Much reliance was placed by the learned counsel for the creditor upon the parenthetical clause inserted in the Gen. Sts. o. 124, § 26. The whole section, as it now stands upon the statute book, is in these words: “If the debtor arrested on execution and taken before the magistrate does not desire to take the oath for the relief of poor debtors, or fails to procure surety or sureties to the satisfaction of the magistrate as before provided, or if upon his examination said oath is refused to him, of which refusal a certificate shall be annexed to the execution and signed by the magistrate, he shall be conveyed to jail, and there kept until he has recognized as herein provided, (if the oath for the relief of poor debtors has not been refused him,) or the execution is sat-' isfied, or until he is released by the creditor, or has given notice as before provided and taken the oath for the relief of poor debtors.”
If the clause contained in the parenthesis had not been here inserted, this section would have been an exact reenactment of § 11 of the St. of 1857, e. 141, and would necessarily imply that a debtor arrested on execution, and refused the poor debtors’ oath, should, upon entering into the appropriate recognizance on appealing from the judgment of the magistrate on charges of fraud— which by the provision of § 17, already quoted, and equivalent to the final proviso of § 10 in the St. of 1857, is the only recognizance which the statute allows to be taken from a debtor after the oath has been refused to him — be discharged from imprisonment ; leaving his liability to be recommitted to depend upon the other sections of the statute, upon which we have already commented. It may also be observed, as tending to con
The parenthetical clause relied on by the creditor was inserted in § 26 by the Commissioners on the General Statutes, who give in their report no reason for its insertion. But that they did not intend in any respect to abridge.the rights or privileges of a debtor charged with fraud is apparent from the note to § 32 in their report, which is § 34 in the General Statutes as passed by the legislature. And a further comparison of the provisions of c. 124 of the Gen. Sts. with those of the St. of 1857, o. 141, corroborates the inference that this clause cannot be allowed the effect for which the creditor contends.
A similar parenthetical clause is found in the section—now the next preceding, but placed in a subsequent part of the St. of 1857— relating to debtors arrested on mesne process and held in custody for the purpose of being taken on execution. Gen. Sts. c. 124, § 25. St. 1857, c. 141, § 21. But the clause, as inserted in the Gen. Sts. c. 124, § 25, was evidently intended as a condensed expression of the proviso at the end of the St. of 1857, c. 141, § 21, that “ no recognizance of the defendant, except to prosecute his appeal as provided in § 14,” (which corresponds to the Gen. Sts. c. 124, § 33,) “ shall be taken after the oath for the relief of poor debtors shall have been refused him.” It would seem that the Commissioners, when revising § 25, considered that the exception of a recognizance to prosecute an appeal from a decision on charges of fraud was already sufficiently declared in § 17 ; and that the parenthetical clause in § 25, as well as in § 26, must be construed as subject to that exception. To allow this clause a more sweeping effect in § 26 would be to make the Commissioners and the Legislature say of a poor debtor arrested on execution, that “ if upon his examination said oath is refused to him,” he shall be imprisoned “ until he has recognized as herein provided, if the oath for the relief of poof debtors has Hot been refused him; ” and thus create such an inconsistency
Upon a review of all the provisions of the statute, we are satisfied that the reasonable conclusion in this case is that the debtor, having obtained a decision of the magistrate in his favor upon the only issue which was within his final jurisdiction, and having duly claimed the right, allowed him by the law, of appealing to the Superior Court upon the issue whether he had made a fraudulent conveyance of his property, and having entered into the recognizance required upon such an appeal, cannot be again imprisoned before the final determination of the case in the Superior Court. Prisoner discharged.