Stockwell v. Silloway

Gray, J.

The questions in this case relate to the application of the defendant, who had been arrested on execution in a civil action, to be admitted to take the poor debtors’ oath. The statutes of the Commonwealth provide that when, either before the arrest or pending the examination of the debtor, the creditor files certain charges of fraud in writing under oath, “ the charges shaL be considered in the nature of a suit at law, to which the defendant or debtor may plead that he is guilty or not guilty *294 and the magistrate shall thereupon hear and determine the same;” that from his judgment “either party may appeal to the superior court, in like manner as from the judgment of a justice of the peace in civil actions,” entering into a recognizance to abide the result; that the trial in the court appealed to shall be by a jury, unless waived by consent; and that, if the debtor, after the making or filing of such charges, voluntarily makes default at any time appointed for the hearing, or upon a final trial is found guilty of any of them, he shall have no benefit of the proceedings to take the poor debtors’ oath, and may be sentenced to imprisonment in the house of correction for not more than one year, or in jail for not more than six months. Gen. Sts. c. 124, §§ 31-34.

These proceedings are in their origin and their main features essentially of a civil and not a criminal nature. The charges of fraud are incidental to the application of the debtor to be relieved from imprisonment by taking the poor debtors’ oath, and are set up by wray of answer to that application. They are declared by the statute to be “in the nature of a suit at law; ” and the appeal of either party from the judgment of the magistrate is to be taken “ in like manner as in civil actions,” and, in a county in which distinct terms are established for the transaction of civil and criminal business, must be entered at a civil term of the superior court. Parker v. Page, 4 Gray, 533 .

The provision that, if the debtor is found guilty of any of the charges of fraud, he may be sentenced to imprisonment in the jail or house of correction, is not indeed an ordinary incident of a civil action, but partakes of the nature of a punishment for crime. It was therefore held in Chamberlain v. Hoogs, 1 Gray, 172 , that the provisions of the practice act, prohibiting motions in arrest of judgment in civil actions for any cause existing before verdict and not affecting the jurisdiction of the court, did not apply to charges of fraud filed under the corresponding sections of the Revised Statutes. Although the express requirement of the Rev. Sts. c. 98, § 28, that “ the said charges shall be fully, plainly and formally set forth in writing,” has been omitted in the Genera Statutes, we should be slow to hold that *295 charges of fraud, upon which a defendant, making default or l found guilty, might suffer imprisonment, need not be stated with such fulness, clearness and precision as to inform him of the nature and particulars of the transaction intended to be proved against him, and to enable him to prepare his defence. If that object is secured, they are not open to any legal or constitutional objection.

The Constitution of the Commonwealth declares that “ no subject shall be held to answer for any crimes or offence until the same is fully and plainly, substantially and formally, described to him.” Declaration of Rights, art. 12. Yet indictments in a very general form, aided by a bill of particulars, have been held sufficient in many cases. Commonwealth v. Davis, 11 Pick. 432 . Commonwealth v. Wood, 4 Gray, 12 , 13. Commonwealth v. Sherman, 13 Allen, 250 , 251. In the first of these cases, Chief Justice Shaw said : “ The great object of the Constitution was, to secure to every subject the benefit of learning before his trial the nature and particulars of the offence charged, not to direct any form of proceeding; and if this is effectually done, it is immaterial how brief the form or how concise the language in which it is done.” 11 Pick. 437 , 438.

Tried by this test, we are of opinion that there is no such imperfection in the charges before us as to require their dismissal upon any of the objections made to them by the debtor.

The person making the charges in behalf of the creditor declares upon his oath not only that he believes and has reason to believe that the defendant did the acts alleged; but upon the same oath “ charges ” that he did these acts. It would be difficult to accuse the defendant more directly, by any form of words. The accusation is - quite as direct as in the ordinary form of an indictment, by which “ the jurors upon their oath present,” or of a complaint, by which the complainant “ complains and on oath informs,” that a certain offence has been committed.

The first charge contains a general statement (in the very form required by the Gen. Sts. c. 124, § 5, to warrant the arrest of the defendant) that since the debt was contracted and the cause of action accrued on which he was arrested he fraudulently con. *296 veyed, concealed and otherwise disposed of some part of his estate with a design to secure the same to his own use and to defraud his creditors. The subsequent charges are in the nature of specifications or particulars, defining the times, the property, and the .grantees. The general charge, taken in connection with these specifications, clearly informs the defendant of the transactions upon which the creditor intends to rely. Though not in the form appropriate to indictments and complaints, they afford him equal information and security.

The objection that the charges contain no venue was not insisted on at the argument, and. cannot be supported; for the fraudulent acts, sufficient to prevent a discharge of the debtor, may have been done out of the Commonwealth.

Some of the specifications are somewhat indefinite in the averment of time. But they all aver a time within the limitation of three years, prescribed in the Gen. Sts. c. 124, § 31. If the allegation of time were governed by the rules applied to indictments, it would not need to be proved as laid. And the defect may be cured by amendment, if necessary. The Rev. Sts. c. 98, § 30, provided that the court should have the same powers as to amendments and other incidents of the cause as in civil actions; and these powers may still be exercised under the more condensed provisions of the Gen. Sts. c. 124, § 31. In any view, the earlier specifications not being open to this objection, it affords no ground for dismissing the appeal.

It is contended in behalf of the debtor, that the provisions of the statute allowing the creditor to appeal from the decision of the magistrate in favor of the debtor, and to have him tried anew in the superior court on the charges of fraud, are unconstitutional. The best answer to this position is to be found by recurring once more to the nature and origin of these proceedings.

By the law of Massachusetts, as by the law of England, at the time of the adoption of the Constitution of the Commonwealth, a debtor committed on execution in a civil action could not be discharged without paying the debt, even on taking the poor debtors’ oath, if his creditor would pay for his support in *297 prison. 3 Bl. Com. 416. Anc. Chart. 650. St. 1787, c. 29. The existing statutes do not give the creditor this election, but allow the debtor to obtain his discharge by taking the poor debtors’ oath, unless he has been guilty of some fraud or wasteful misuse of his property. By applying to be admitted to take the poor debtors’ oath, he assumes the risk of meeting such charges, and of being punished if found guilty thereof. It is only in answer to his own application, that the inquiry which may result in such punishment can take place. Although the proceedings aré set in motion by himself, yet, as soon as they assume a shape which may produce such serious consequences to him, the allegations of the adverse party are required to be distinctly stated in writing and on oath, and from the judgment of the magistrate either party is allowed an appeal to a jury. If the debtor is found guilty of fraud by the magistrate, and appeals, he may be admitted to bail pending the appeal, and cannot in any event be imprisoned by way of punishment until convicted in the appellate court. If he is discharged by the magistrate, and the creditor appeals, the debtor cannot be imprisoned again until after the trial of the appeal or his own default. Ingersoll v. Strong, 9 Met. 447 . Collamore v. Fernald, 3 Gray, 318 . With all these precautions against oppression, we perceive no constitutional objection to permitting a debtor, voluntarily applying to take the poor debtors’ oath, and failing in his application by reason of proof, upon specific charges, of his own fraud, to be punished by the sentence of the judge or magistrate who has heard all the circumstances; nor to allowing to the creditor, as well as the debtor, the opportunity of having the truth of these charges finally determined by a jury. It may be added that statutes like those now complained of have been in force in this Commonwealth for more than thirty years, and have been assumed to be valid in many cases above cited.

The remaining question arises on the plea in bar, setting up the pendency of proceedings in bankruptcy commenced since the entry of the appeal in the superior court. In support of this plea, the debtor relies ou that provision of the bankrupt act, *298 which declares that “ no bankrupt shall be liable to arrest during the pendency of the- proceedings in bankruptcy in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him.” U. S. St. 1867, c. 176, § 26; 14 U. S. Sts. at Large, 529.

But the arrest here contemplated is manifestly a new arrest for the benefit of the creditor. A similar provision in the English bankrupt acts has been held not to apply to a surrender of a debtor by his bail and subsequently charging him on execution, nor to a retaking by the jailer of a debtor who had escaped from custody. Ex parte Gibbons, 1 Atk. 238. Payne v. Spencer, 6 M. & S. 231. Ex parte Johnson, 14 Ves. 36. Anderson v. Hampton, 1 B. & Ald. 308. And this very section has been adjudged by the district court of the United States in this district not to extend to the case of a debtor who, before the commencement of bankruptcy proceedings, had been arrested on mesne process, given bail, and surrendered himself in discharge of his bail, and was charged on an alias execution taken out after his bankruptcy; upon the ground that this act of the creditor was not in law or fact a new arrest during the pendency of the proceedings, but only a lawful continuation of the old arrest according to the terms and for the purposes for which it was originally made. In re Hazleton, 2 Bankr. Reg. 12.

In the case at bar, if the debtor had been found guilty by the magistrate, he must have given bail or remained in custody. The fact that he was found not guilty by the magistrate, and was therefore permitted to go at large pending the appeal, does not make the taking of his body on execution, in case of his ultimate conviction, a new arrest. So far as the creditor is concerned, it is a restoring of the debtor to the confinement from which he had obtained a temporary relief pending the appeal. It is also an imprisonment by way of punishment for the fraud originally charged against him before the magistrate. In neither respect is it an arrest within the contemplation of that provision of the bankrupt act on which the debtor relies. There would be peculiar difficulty in allowing that provision to affect the determination of the debtor’s right to be discharged by tak *299 mg the poor debtors’ oath, and of his liability to imprisonment by way of punishment for fraud, upon the proceedings in this case, which were commenced before the bankrupt act took effect. Longis v. His Creditors, 20 Louisiana Annual R. 15. Day v. Bardwell, 97 Mass. 246 .

The motion to dismiss and the plea in bar must therefore both be overruled, and the Case stand for trial.