May v. Hammond

Poor Debtor — Debt — Promissory Note — Indorser — Evidence — Record — Amendment. The contingent liability of the indorser of a promissory note is a “ debt ” within the Pub. Sts. c. 162, § 17, cl. 5, which may be contracted “ with an intention not to pay the same.” Oral evidence of a magistrate, before whom the examination of a poor debtor is had, is inadmissible to contradict his record.

Two ACTIONS OF CONTRACT upon poor debtor recognizances, entered into under the Pub. Sts. c. 162, § 28, by the first-named defendant as principal, and the other defendant as surety, and containing the usual conditions. The cases were tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions in each case, which, so far as material, was as follows: , It appeared in evidence that Hammond was duly arrested upon an execution in favor of the plaintiff, judgment having been recovered against him as indorser of a promissory note made to the plaintiff by one Ames. The affidavit of the plaintiff, upon which the certificate of the magistrate authorizing the arrest was issued, set forth that the plaintiff believed, and had “ good reason to believe, that the debtor, Winthrop M. B. Hammond, has property not exempt from being taken on execution, which he does not intend to apply to the payment of the judgment creditor’s claim; and further, that I believe and have good reason to believe that the debtor, Winthrop M. B. Hammond, contracted the debt with an intention not to pay the same.” The judge refused to rule, as requested by the defendants, that the liability of an indorser is not a “debt” within the meaning of the Pub. Sts. c. 162, § 17, cl. 5, and that the charge contained in the affidavit upon which the certificate of arrest was issued, that the debtor contracted the debt with an intention not to pay the same, did not apply, and that the arrest was invalid, as the first charge alone did not authorize an arrest. The magistrate before whom Hammond delivered himself up for examination was permitted to testify that a hearing was appointed for July 25, 1885, at nine o’clock; that before the expiration of the hour, Hammond's attorney, who was present, stated that his client would be present, and moved that the hearing be kept open for him to come in, or be adjourned; that while this motion, which' the witness admitted he entertained at the time it was made, was being argued, and before any default had been entered, except in the magistrate’s “mind,”- the defendant came in, at Six minutes past ten o’clock; and that he stated at the time of the discussion that he had no jurisdiction in the case after ten o’clock, which point was combated by the attorney. The magistrate’s record showed that Hammond was defaulted because he did not appear personally within the hour. The judge ruled, upon the plaintiff’s objecting to this evidence, that oral evidence outside of the magistrate’s record was inadmissible to contradict it, and directed a verdict for tlie plaintiff in each case. The defendants alleged exceptions.