Noyes v. Manning

162 Mass. 14 | Mass. | 1894

Mokton, J.

The principal question which is discussed by the defendant in his brief relates to the authority of the assistant clerks of the Municipal Court of the city of Boston to issue executions and sign orders and certificates made by that court. It is enough to say of this question, that it is not included in the motion in arrest, and cannot be raised for the first time at the argument in this court. The appeal brings up as matter of law only the question of the correctness of the ruling as made upon the motion that was filed.

The substance of the motion in arrest' is that the charge of fraud on which the defendant was tried and found guilty does not set out the fraud with such clearness and formality as the law requires, but is vague, indefinite, and insufficient in regard to the nature of the contract, the parties, and other particulars necessary, it is alleged, to inform the defendant what he is to meet. The charge on which the defendant was arrested was the fifth contained in Pub. Sts. c. 162, § 17, and was made as follows: “ And now comes the creditor in the above entitled action, and says that the action (upon which execution in said case was issued and the said debtor arrested) was founded on contract, that the debtor contracted the debt with an intention not to pay the same.’ ” This was signed and sworn to as required by the statutes. It is to be observed that the substantive part of the charge was in the precise words of the statute. It is assumed in Chamberlain v. Hoogs, 1 Gray, 172, and in Frost's case, 127 Mass. 550, 554, that that may be sufficient, especially if there is no objection to it. Poor debtor proceedings are in their main features of a civil, and not of a criminal nature, though if a debtor is found guilty upon a charge of fraud he may be imprisoned. Everett v. Henderson, 150 Mass. 411. Parker v. Page, 4 Gray, 533. Stockwell v. Silloway, 100 Mass. 287. Leonard v. Bolton, 153 Mass. 428. Noyes v. Manning, 159 Mass. 446. When the charge does not, by reference to the action or otherwise, furnish the particulars necessary to enable the debtor clearly to understand what he is accused of, the creditor may be required to file specifications, and if he fails so to do the charge perhaps could be quashed if seasonably objected to. Frost's case, 127 Mass. 550, 554. In this case the action to which the poor debtor proceedings related and the charge referred seems to have furnished the debtor with all the information that he required, and the sufficiency of the charge was not objected to till after the verdict, and when the defendant was brought up for sentence.

Order overruling motion in arrest of judgment affirmed.