CJortifU ICatu Bt\}ati\ Hibtarg Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024685970 THE POOR DEBTOR LAW OF MASSACHUSETTS " By the law of Massachusetts, as by the law of England, at the time of the adoption of the Constitntion 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 prison. 3 Bl. Com. 416. Anc. Chart. 650. St. 1787, c. 29. The existing stat- utes 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 are 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. JngersoU v. Strong, 9 Met, 447. CoUamore v. Femald, 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 fEiiling 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 circum- stances ; 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." — Cfrayf J., in Stockwell t. Silloway, 100 Mass. 287, "The statute was designed for the benefit of honest debtors. It is intended to punish fraudulent debtors ...." — Morton, J., in Dennises Case, 110 Mass. 18, 20 a872). A STUDY OF THE POOR DEBTOR LAW OF MASSACHUSETTS AND SOME DETAILS OP ITS PRACTICE CHARLES E. ^INNELL ONE OF THE MA3TEKS IN CHANCERY FOE THE COUNTY OF SUFFOLK With a CHBONOLOGiCAii List of the Statutes of Massachusetts; A Table of the Statutes of the other States, the Terri- tories, AND the United States ; and a List of Books CONCERNINQ Poor Debtors BOSTON LITTLE, BROWN, AND COMPANY 1883 Copyright, 1883, By Chaeles E. Gbinnell. University Press : John Wilson and Son, Cambridge. TO JAMES B. RICHAEDSON ONE OF THE MASTERS IN CHANCEET FOE THE COUNTY OF SUFFOLK WITH KESPECT POK HIS JUSTICE AND WISDOM AS A MAGISTRATE WITH GRATITUDE FOR HIS DISINTERESTED COUNSEL AS A COLLEAGUE AND WITH AFFECTION FOR HIS KINDNESS AS A FEIEND PREFACE. Theee has long been felt a need of a somewhat coherent general view of the statutes and cases making the poor debtor law, and of a common understanding about its details that might facilitate an approach towards uni- formity in practice. The existing diversity of opinion about what the law is, and the irregularity in practice, not only perplex members of the bar and the magistrates who usually administer the law in the first instance, but it is well known that the Supreme Judicial Court does not find it always easy to construe the fragmentary and obscure statutes. Hence, with deference to the exacting tests of practical use by which a book must be judged, I indulge the hope that this Study will be useful in the trial of causes, in settling the law, and in despatching business. It has grown, not merely out of a careful read- ing of the books, but also out of the necessities of the present life of the people in the actual emergencies of the practice of law. Much of it I prepared several years ago for my own use, and I have constantly sought criti- cism. Since the Public Statutes I have written it anew. Of course a book written as an aid to deliberate and prompt action requires constant reference to the per- sons who are expected to use it. Accordingly I have tried to give due weight to the opinions of men of learn- ing and the customs of men of experience, when I have Vm PEEFACB. found myself differing from their views. And since differences of opinion or custom need not always obstruct business, I have carefully suggested here and there some means of avoiding unnecessary risks in doubtful cases. The Study is made upon the following plan. An out- line of the internal history or contents of the law is given in my memoranda inserted in the Chronological List of the Statutes of Massachusetts. Chapter 162 of the Pub- lic Statutes, Of Arrest, Imprisonment, and Discharge, is, for convenience, printed in full, with references to other statutes and to cases as they occur in the margin of the Public Statutes, and with references to this book. The chapters upon Practice are attempts to state in detail what is done in the best practice, under that chapter, with such fulness that magistrates, practitioners, and offi- cers, who are not familiar with the law or the practice, may be guided from the beginning to the end of com- mon cases, and may be helped to meet intelligently and prudently unusual perplexities. Then the chapters which make the largest part of the volume, the Discussion of the Statutes and Cases, state the points of decided cases in an historical form, with frequent references to the ex- isting law, as distinguished from the common method — sometimes indispensable in treatises of a different kind — of laying down a general proposition and citing cases to support it. This detailed mode of statement is adopted because there is such a network of statutes involving the cases ; and so many changes, necessarily arbitrary, have been made in the statutes from time to time. Neverthe- less, for the sake of clearness, a classification has been made by massing together the related points of the sev- eral parts of different cases, under conveniently broad , titles, in chapters with groups under sub-titles. In order, PREFACE. ix however, to get the advantage of the swing of such prin- ciples as can be stated free from the most embarrassing of the details, and to furnish the reader with an insight into the system of the law as a body of practical rules largely controlled by principles established by experience, I have written several chapters and a number of sections here and there, in which I take it for granted that the reader either has read the rest of the book or is familiar with the law. But I have also frequently taken the pre- caution of referring to other parts of the book in order to make it constantly apparent that a precise knowledge of details, as well as a comprehensive view, is essential to a sound understanding of the law and competent action under it. I would suggest to any one who happens to have occa- sion to consider this law for the first time, and wishes to get quickly a view of the whole, to read first the chapters on Practice, and then the chapter on Charges of Fraud, &c., and the chapter on Property, Fraud, Bes Adjudicata, &c. These last two chapters show the wide range of this law in its control of the distinctions between civil and criminal process, and its inclusion of equitable powers with the wise purpose of speedily and justly disposing of causes which otherwise might delay the courts. Fully to appreciate its structure and its his- tory, and adequately to administer it, requires familiarity with both common law and equity, and an understanding sound and liberal enough to enable one to comprehend the nature and purpose of a statute, and to distinguish between reasoning and quibbling in its construction. The cases cited in this book prove that the broad intention of the Legislature has been steadily carried out by the deci- sions of the Supreme Judicial Court. X PEEFACE. There is no other book which attempts even so much of this task as is here undertaken. I am the less reluc- tant to venture upon publication because for some time I have been often requested to do so by magistrates, practitioners, and officers, from several counties, who have had occasion to consult me. With such encouragement from my fellow-workmen I am glad to try to put a part of what they have helped me to learn into a convenient form for their use. I am especially indebted to a few of my friends who have assisted me in reading this Study on its way through the press. My friend Albert D. Bosson has read all the proof-sheets, and has given me many valuable suggestions. My friend Hollis R. Bailey has exercised his accuracy and discrimination in reading all the proof-sheets, and his thoroughness in searching the Massachusetts Reports to complete my collection of cases required within the limits of this book, and in finding our statutes which I have read and described briefly by memoranda of their contents in the Chronological List. He has also carefully made the Table of other Statutes, the List of Books, the Table of Cases, and the Index. CHARLES E. GRINNELL, 30 Court Steeet, Bostoit, Massachusetts. 8 March, 1883. TABLE OF CONTENTS. THE FIGURES IN FULLrFACED TYPE REFER TO SECTIONS OF THIS BOOK. PREFACE vii TABLE OF CASES CITED six DISCUSSION OF THE STATUTES AND CASES JURISDICTION 1-37 PROPERTY, FRAUD, RES ADJUDICATA, AND THE ISSUES UNDER PUBLIC STAT- UTES, C. 162, §§ 21, 24, AND 39 ... . 38-45 CHARGES OF FRAUD BEFORE ARREST UPON EXECUTION, AND AFTER ARREST UPON MESNE PROCESS OR EXECUTION . . 46-77 Introduction 46 Mixed Civil and Criminal Nature of the Proceed- ings 47-52 When Charges of Fraud may be filed 53-56 By whom filed 57-58 Specifications and Amendments 59-64 • Evidence ~. 65-67 Appeal 68-77 RECOGNIZANCES 78-123 Introduction Jurisdiction 78 Form, Recitals 79-89 Xll TABLE OF CONTENTS. RECOGNIZANCES— confenuerf. Compliance and Breach 90-105 Discharges 106-112 Evidence 113-119 Record, Pleading, Amendment 120-123 BONDS ■ 124-148 AFFIDAVITS AND CERTIFICATES .... 149-169 Introduction 149 Affidavits upon Mesne Process 150-153 Certificates before Arrest 154-160 Affidavits upon Execution 161-165 Certificates after Arrest 166-169 APPLICATIONS TO JAILERS AND MAGIS- TRATES 170-176 NOTICE 177-217 Origin of the Cases upon Notice 177, 178 Necessity of Notice 179-182 Proof of Notice .... * 183, 184 Interpretation and Construction of Notice . . . 185 Statement of what is applied for 186 Description of the Case 187-192 The Name and Description of the Party upon . vphose Application Notice issues 193-195 The Name and Description,- of the Party to . whom Notice issues 196-201 Appointment of Place and Magistrate .... 202-204 Appointment of Time 205, 206 Signature and Title of Magistrate 207 New Notice 208-217 SERVICE OF NOTICE 218-241 Origin of the Cases upon Service 218 By whom and how 219-222 Time for Preparation and Travel 223-228 Upon whom and where 229-241 OFFICERS' RETURNS 242-256 Introduction 242 Return of what 243 The Return as Evidence 244-253 Amendment of Return as Evidence .... 254-256 TABLE OP CONTENTS. xiii ARREST 257-285 Introduction ... 257 Definition 258-260 Restraint of Arrest (Women, 285, note) . . 261-285 ESCAPE • . . 286-304 SUPPORT 305-312 Origin of Cases upon Support 305 Demands by Prisoner and Jailer 306-308 Liability of Towns and Cities 309, 310 Creditor's Liability 311, 312 COMMITMENT AND DISCHARGE .... 313-322 Commitment (see 169) 313-319 Discharge 320-322 EFFECT OF IMPRISONMENT UPON A JUDG- MENT DEBT 323-326 .APPEARANCE AND ATTENDANCE . . . 327-331 THE OATH FOR THE . RELIEF OF POOR DEBTORS 332-336 SURRENDER OF PRINCIPAL BY SURETY. 337-342 EVIDENCE 343-355 THE " APPLICATION " OF A JUDGMENT CREDITOR BEFORE THE ISSUE OF NOTICE TO A JUDGMENT DEBTOR . 356-367 FEES OF MAGISTRATES . 368-371 " AUTHORIZING " AN ARREST 371 a PRACTICE. ARREST ON MESNE PROCESS IN ACTIONS OF CONTRACT 372-399 Statutory Provision 372 Jurisdiction 373-375 The County 373 The Magistrate 374 The Fee 375 XIV TABLE OF CONTENTS. AREEST ON MESNE PROCESS IN ACTIONS OF CONTRACT — con^mued. , The Application 376-381 Form 1 376 Proof of Affidavit 377 Granting Certificate. — The Sunset Clause . . 378 Authority. — Form 2 379 Annexation 380 Record. — Memorandum as Record 381 The Arrest 382-384 Officers 382 Conveying Prisoner. — Taking before Magistrate 383 Escape. — Rescue. — Posse Comitatus .... 384 Bail 385-390 Sureties. — Form 3 385 Accepting Bond 386 Approving Bond 387 Release on Bail ' 388 Bond by other than a Party 389 No B^il after Sentence 390 Recognizance 391-396 Sureties 391 Choosing a Magistrate 392 Before the Magistrate 393 Release upon the Recognizance. — Forms 4 and 5 394 Delivery up to Magistrate 395 Defendant's Notice of Desire to take the Oath that he does not intend to leave the State. — Avoiding JaU. — Fixing Time and Place of Examination. — Form 6 395 Service of Notice 395 Non- Attendance of Magistrate. — Form 7 . . 396 The Examination 397-399 Creditor not attending. — Discharge. — Form 8 397 Both Parties attending. — Forms 9, 10, 11 . . 398 After Defendant's Failure to satisfy Magistrate concerning Intention to leave State .... 399 TABLE OP CONTENTS. XV AKREST ON MESNE PROCESS IN ACTIONS OF TORT . , 400 Form 12 400 BEFORE AND AFTER ARREST ON EXECU- TION 401-437 Jurisdiction 40i Application 402-408 Meaning of " Application " 402 Notice or " Citation." — Form 13 403 Defective Notice and Service 404 Power of Magistrate to postpone or continue . . 405 Non-attendance of Magistrate 406 Continuance by another Magistrate 407 Waiver of Attendance. — Continuance or Post- ponement by Agreement. — Written Agree- ments 408 The Examination before Arrest .... 409^18 Statutory Provision for it 409 Attendance of Magistrate and Parties. — Swear- ing the Debtor. — Object of Written Examin- ation 410 The Issue 411 The Examination • 412 Written Examination. — Forms 14, 15 . . . . 413 The Whole Hearing in Writing 414 Examination ordered out of Magistrate's Presence 415 Rule of Evidence 416 . Relevancy of Fi-aud 417 Non-appearance or Disobedience of Debtor. — Form 16 418 Arrest after Examination 419, 420 Affidavits, Proof, Certificates, and Executions. — Forms 17, 18 419 Privileges of Judgment Debtors before a Magis- tate 420 Arrest upon the Charge that the Judgment Debtor intends to leave the State . . 421 Form 19 421 xvi TABLE OF CONTENTS. BEFORE AND AFTER ARREST ON EXECU- TION — continued. Policy of a Debtor, — before Examination AND Arrest, — and after Arrest . . 422, 42S Policy of Default at Esamiaation before Arrest 422 Policy of applying for Poor Debtor's Oath . . 423 Classification of the Rights of Judgment Debtors before a Magistrate after Arrest (Women, 285, note) 424 Preparation for Settlement after Arrest . . . 425 Commitment and Application for Oath IN Jail 426, 427 Form 20 .- *26 Discharge without Examination. — Form 21 . . 427 Arrest after Charges of Fraud .... 428 Affidavits. — Certificates. — First Charge is Sur- plusage. — Form 22 428 Examination for the Poor Debtor's Oath 429-431 Without Regard to any Charge 429 The Issue 430 Order of Proceeding. — Form 23 431 Assignment to Creditor before Oath .... 431 Trial upon a Charge of Fraud .... 432-438 ' Filing the Charge 432 Order of Proceeding 433 Guilty. — Sentence. — Mittimus. — Form 24 . . 434 Appeal. — Different Rights under Appeal. — Guilty. — Not Guilty. — Property. — No Prop- erty. — Forms 25, 26 435 Serving out. Sentence, and New Application for Oath 436 Construction. — Discussion of Mowry's Case . 437 RULES FOR HEARINGS AND EXAMINATIONS 438 FORMS. Forms 27, 28, 29, 30. 438 The Forms are referred to above, through this Table of Con- tents, by their numbers, under the respective subjects with which they are placed and discussed in this book. A full list of them, with their numbers and descriptions, is given under the title Forms in the Index. TABLE OF CONTENTS. xvii APPENDIX. CHRONOLOGICAL LIST OF STATUTES OF MASSACHUSETTS pp. 317-345 THE PRESENT STATUTE, P. S. c. 162 . pp. 346-382 TABLE OF STATUTES OF OTHER STATES, THE TERRITORIES, AND THE UNITED STATES pp. 388-393 LIST OF BOOKS AND ARTICLES ... pp. 394-400 INDEX PP- 401-453 TABLE OF CASES CITED. THE FIGURES IN rULL-PAOED TYPE EEFEK TO THE SECTIONS OF THIS BOOK. Abbott V. BuUard, 8 Cush. 141 (1851) 138 U.Tucker, 4 Allen, 72 (1862) .... 111,152,161,162 Adams v. Brown, 14 Gray, 579 (1860) note after 123 V. Stone, 13 Gray, 396 (1859) 88, 92 V. Wiscasset, 5 Mass. 328 (1809) note after 312 Allen V. Shed, 10 Cush. 375 (1852) note after 285 Almy V. Wolcott, 13 Mass. 73 (1816) 262 Amadon v. Mann, 3 Gray, 467 (1855) 150 Anderson v. Edwards, 123 Mass. 273 (1877) 65, 343 Andrews v. Knowlton, 121 Mass. 316 (1873) 352 Appleby v. Clark, 10 Mass. 59 (1813) . . notes after 304, 326 Appleton V. Bascom, 3 Met. 169 (1841) . . 141, note after 148 V. Hopkins, 5 Gray, 5-30 (1855) . . notes after 285, 367 Bailey v. Jewett, 14 Mass. 155 (1817) 326 Bakers. Moffat, 7 Cush. 259 (1851) 167,208 Barber v. Floyd, 109 Mass. 61 (1871) 82, 181 Barkers. Ryan, 1 Allen, 72 (1861) 12,124 BarnesK.Ladd, 130 Mass. 557 (1881) . . .' 91,395 Bartlet v. Falley, 5 Mass. 373 (1809) note after 342 Bartlett v. "Willis, 3 Mass. 86 (1807) 129, 290 Baxter v. Taber, 4 Mass. 361 (1808) 292 Bean v. Parker, 17 Mass. 591 (1822) ... . 125, 131, 136, 350 Belchertown, Inhabitants of v. Inhabitants of Dudley, 6 Allen, 477 (1863) . . .' note after 355 Bemis v. Leonard, 118 Mass. 502 (1875) .... note after 241 XX TABLE OF CASES CITED. Bigelow V. Johnson, 16 Mass. 218 fl819) .... note after 342 V. Willson, 1 Pick. 485 (1823) 139 V. Winsor, 1 Gray, 299, 302 (1854) 40, 41 Blake «. Mahan, 2 Allen, 75 (1861) 116,146 Blake's Case, 106 Mass. 501 (1871) .... 280, note after 285 Blanchard v. Walker, 4 Cush. 455 (1849). . . notes after 37, 331 Blood V. Austin, 3 Pick. 259 (1825) ..... 186, 303, 306, 307 Boston Type, &c. Toundery v. Wallack, 8 Pick. 186 (1829) note after 285 Bowman v. Wiseassett, 13 Mass. 247 (1816) 310 Brackett v. Winslow, 17 Mass. 153 (1821) .... note after 285 Bradford v. Earle, 4 Pick. 120 (1826) note after 148 Bridge v. McLean, 2 Mass. 620 (1807) 355 Brigham v. Este, 2 Pick. 420 (1824) 268 Brinley v. Allen, 3 Mass. 561 (1801) 262 Brooks V. Hoyt, 6 Pick. 468 (1828) note after 304 V. Weeks, 121 Mass. 433 (1877) note after 355 Brownr. Bartlett, 5Gray,461 (1855) 148,172 V. Getchell, 11 Mass. 11 (1814) 133, 263 V. Kendall, 8 Allen, 209 (1864) note after 304 V. Lakeman, 5 Met. 347 (1842) 7 u. Tobias, 1 Allen, 385 (1861) 57, 64, 71 Browne v. Hale, 127 Mass. 158 (1879) 209 Bruce v. Keogh, 7 Cush. 536 (1851) 171 BuUen v. Dresser, 116 Mass. 267 (1874) 110 Burnett!). Small, 7 Gray, 548 (1856) 144 Burrell v. Lithgow, 2 Mass. 526 (1807) note after 304 Burroughs v. Lowder, 8 Mass. 373 (1812) 128, 294 Burt V. Geary, 128 Mass. 404 (1880) 215 Bussey v. Briggs, 2 Met. 132 (1840) 186, 187 Butler u. Fairbanks, 4 Gray, 531 (1855) 168 Call V. Hagger, 8 Mass. 423 (1812) .... 297, note after 304 Calnan v. Toomey, 129 Mass. 451 (1880) 192 Cargill V. Taylor, 10 Mass. 206 (1813) 292, 293 K. Wiscasset, 2 Mass. 547 (1807) 309 Carleton v. Akron Sewer Pipe Co., 129 Mass. 40 (1880) 16, notes after 123, 217 V. Choate, 5 Allen, 577 (1863) 20 D.Wakefield, 111 Mass. 481 (1873) 329 Carroll v. Rogers, 4 Allen, 70 (1862) 227, 232 Carter v. Cloheoy, 100 Mass. 299 (1868) 207 TABLE OF CASES CITED. xxi • V. Hart, 104 Mass. 221 (1870) 87 Central National Bapk v. O'Connor, 123 Mass. 52 (1877) . . . 228 Chamberlain u. Hoogs,l Gray, 172 (1854) 47,50,63 u. Mallard, 2 Kclc. 439 (1824) 312 Chapiu V. Haley, 133 Mass. 127 (1882) . . notes after 37, 77, 355 Chase v. Chase, 105 Mass. 385 (1870) note after 326 w. Ingalls, 97 Mass. 524 (1867) 160,165 V. Keyes, 2 Gray, 214 (1854) note after 304 Chellis V. Leavitt, 124 Mass. 359 (1878) 112 Cheney v. Whitely, 9 Cush. 289 (1852) . . 323, note after 326 Chickering v. Robinson, 3 Cush. 542 (1849) . . note after 123 City Bank. " See under name of place. Clap K. Cofran, 7 Mass. 98 (1810) . . . 128, 294, note after 304 V. Cofran, 10 Mass. 373 (1813) note after 304 Clapp V. Hayward, 15 Mass. 276 (1818) 299 Clark V. Flagg, 11 Cush. 539 (1853) 135, 139 «. Goodwin, 14 Mass. 237 (1817) note after 326 Clatur V. Donegan, 126 Mass. 28 (1878) 62, 70 Clement v. Sargent, 100 Mass. 300 (1868) 6 Coburn v. Palmer, 10 Cush. 273 (1852) . . . 323, note after 326 Cody V. Adams, 7 Gray, 59 (1856) note after 169 Coffin V. Ewer, 5 Met. 228 (1842) note after 304 Colburn v. Downes, 10 Mass. 20 (1813) .... note after 148 Colby «. Sampson, 5 Mass. 310(1809) 304 Cole w. Gushing, 8 Pick. 48 (1829) note after 326 Coleman v. Hawkes, 120 Mass. 594 (1876) 371, 397 Collaraoreu. Fernald, 3 Gray, 318 (1855) 75 Collins V. Douglass, 1 Gray, 167 (1854) ... . 194, 195, 244 Commonwealth w.Alden, 14 Mass. 388 (1817) 336 v. Badlam, 9 Pick. 362 (1836) 285 u. Brickett, 8 Pick. 138 (1829) note after 285 V. Cheney, 108 Mass. 33 (1871) note after 123 w. Curley, 101 Mass. 24(1869) note after 304 V. Cutter, 98 Mass. 31 (1867) 79, 84, 89 V. Field, 13 Mass. 321 (1816) 265 . Richmond, 14 Mass. 478 (1768) . . . . note after 367 Davis'sCase, 111 Mass. 288(1873) 281,367 De Grand v. Hunnewell, 11 Mass. 160 (1814) 287 Dennis's Case, 110 Mass. 18, 20 (1872) 45, 52 Denny v. Lincoln, 5 Mass. 385 (1809) note after 304 Dike V. Story, 7 Allen, 349 (1863) 6, 11, 13 Doane v. Baker, 6 Allen, 260 (1863) . . notes after 37, 304, 322 V. Bartlett, 4 Allen, 74 (1862) 29, 31, 324 Dodge V. Doane, 3 Cush. 460 (1849) 325 Doggett ». Dedham, 2 Mass. 564 (1805) ' 309 Doherty W.Clark, 3 Allen, 151 (1861) 175,176,342 Dooley v. Cotton, 3 Gray, 496 (1855) 145, 271 Dow y. Sanborn, 3 Allen, 181, 183(1861) . . . note after 77 Dunhamr. Burlingame, 2Met. 271 (1841) . . . . 185,201,203 Dwyeru. Winters, 126 Mass. 186 (1879) .... note after 217 Dyer u. Hunnewell, 12 Mass. 271 (1815) 174 Eastman v. Perkins, 10 Cush. 249 (1852) 183, 250 Elliott V. "Willis, 1 Allen, 461 (1861) 37, 219 Estest). Mitchell, 14 Allen, 156(1867) . 27,96 Farley v. Randall, 22 Pick. 146 (1839) 140 Faxon v. Baxter, 11 Cush 35 (1853) note after 285 Fishery. Deans, 107 Mass. 118 (1871) note after 123 TABLE OF CASES CITED. xxiii Fletcher w. Bartlett, 10 Gray, 491 (1858) 74,437 Follansbee v. Bird, 8 Gush. 289 (1851) 229 Fossu. Hildreth, 10 Allen, 76 (1865) . . . . notes after 285, 355 Foster v. Essex Bank, 16 Mass. 245, 259 (1819) . . note after 304 V. Foster, 130 Mass. 189 (1881) 58, 284 Francis v. Howard, 115 Mass. 236 (1874) 249, 373, note after 331 Freeman v. Davis, 7 Mass. 200 (1810) 127, 128, 294 French!). Bancroft, 1 Met. 502 (1840) 258,270,395 Frost's Case, 127 Mass. 550 (1879) . ! . . 39, 41, 42, 43, 45, 428 FuUam v. Valentine, 11 Pick. 156 (1831) 338 Fuller V. Davis, 1 Gray, 612 (1854) 132 V. Meehan, 118 Mass. 136 (1875) 101 Gage V. Graffam, 11 Mass. 181 (1814) 264 Gardneru. Way, 5 Allen, 452 (1862) note after 123 Gilmore v. Edmunds, 7 Allen, 360 (1863) 81, 85 ^.Edmunds, 9 Allen, 379 (1864) 180 Godfrey v. Munyan, 120 Mass. 240, 243 (1876) 14, 32 Goodall 0. Myrick, 111 Mass. 484 (1873) 102 Grant!). Clapp, 106 Mass. 453 (1871) 216 Green v. Wilbur, 10 Cush. 439 (1852) ... . 189, 190 Griffin w. Brown, 2 Pick. 304 (1824) 301 Grimesu.Briggs, 110 Mass. 446(1872) . . . 431, note after 326 Hannumi). Tourtellott, 10 AUen, 494 (1865) . . . note after 241 Hart V. Adams, 7 Gray, 581 (1856) . . . 255, 316, 317, 320, 371 Harwood v. Wiley, 115 Mass. 358, 360 (1874) 235 Haskell v. Haven, 3 Pick. 404 (1826) . . 166, 178, note after 367 HastmgS!). Partridge, 124 Mass. 401(1878) 208,214 Haynes v. Saunders, 11 Cush. 5.37 (1853) 4, 154 Hayward's Case, 10 Pick. 358 (1830) 35 Henshaw v. Cotton, 127 Mass. 60 (1879) .... 36, 396, 398 V. Savil, ll4 Mass. 74 (1873) 220, 347 Hildreth v. Brigham, 12 Allen, 71, 73 (1866) . 163, 164, 261, 367 Hill V. Bartlett, 124 Mass. 399 (1878) 198 V. Hunnewell, 1 Pick. 192 (1822) . 136 Hills V. Jones, 122 Mass. 412 (1877) . . .17, notes after 37, 123 Hitchcock V. Baker, 2 Allen, 431 (1861) 152, 162 Hobbs V. Fogg, 6 Gray, 251 (1856) 328 Holmesu. Day, 108 Mass. 563 (1871) 109 Homer v. Sinnott, 119 Maas. 191 (1875) 228, 322 XXIV TABLE OF CASES CITED. Hooper v. Cox, 117 Mass. 1 (1875) 96, 282 Horton ». Weiner, 124 Mass. 92 (1878) 53,66 Houghton V. Wilson, 10 Gray, 365 (1858) 273 Hulett V. Pixley, 97 Mass. 29 (1867) note after 169 Hyatt V. Felton, 9 Allen, 378 (1864) 239, 322, 427 Hyde v. Malley, 121 Mass. 388 (1876) . . 5, 169, note after 322 Ilsley u. Jewett, 3Met, 439 (1841) ■ 147 V. Nichols, 12 Pick. 270, 275, 276 (1831) 266 Ingersollw. Strong, 9 Met. 447, 448, 453 (1845) ...... 75 Jacobs K. Tolman, 8 Mass. 161 (1811) 295 Jacotw. Wyatt, 10 Gray, 236(1857) 94,225 Jenkins v. Newell, 9 Met. 303 (1845) 148, 172 Jewett V. Locke, 6 Gray, 233 (1856) 272 Kane w. Learned, 117 Mass. 190 (1875) 34 Kennedy v. Duncklee, 1 Gray, 65 (1854) . . 323, note after 326 King V. Goodwin, 16 Mass. 63 (1819) .... 323, note after 322 Knight w. Dorr, 19 Pick. 48 (1837) note after 148 V. Fifield, 7 Cush. 263 (1851) 234 V. Sampson, 99 Mass. 36 (1868) 33, 100 Ladrick v. Briggs, 105 Mass. 508 (1870) note after 285 Lang V. Bunker, 1 Allen, 256 (1861) . . 9, 10, 256, note after 37 6.. Bunker, 6 Allen, 61 (1863) 10 Leach v. Hill, 3 Met. 173, 174 (1841) 189, 246 Learnard v. Bailey, 111 Mass. 160 (1872) .... 114, 117, 354 Leighton, £a;;)arte, 14 Mass. 207 (1817) note after 285 Leland w. Marsh, 16 Mass. 389 (18-20) .... . note after 285 Leon V. Bickford, 15 Gray, 73 (1860) note after 355 Lewis V. Gamage, 1 Pick. 347 (1823) note after 322 Lincoln v. Cook, 124 Mass. 383 (1878) 25, 348 Little V. Hasey, 12 Mass. 319 (1815) 333 V. Newhuryport Bank, 14 Mass. 443 (1817) .... 31, 324 Locke V. Dane, 9 Mass. 360 (1812) note after 148 Lockhurst v. West, 7 Met. 230 (1843) note after 37 Longley v. Cleavland, 133 Mass. 256 (1882) . notes after 77, 336 TABLE OF CASES CITED. XXT Lord w. Skinner, 9 Allen, 376 (1864) 223, 335 Lothrop V. Bailey, 14 Allen, 514 (1867) 100 V. lie, 13 Gray, 93 (1859) 253, 274 Lyman w. Lyman, 11 Mass. 317 (1814) 326 Lynde v. Richardson, 124 Mass. 557 (1878) 204, 216 Manchester Bank v. Williams, 122 Mass. 534 (1877) .... 340 Mann v. Mirick, 11 Allen, 29 (1865) 24, 330 Manuel v. Bates, 104 Mass. 354 (1870) .... 4, 158, 371 a, 379 Marsh v. Bancroft, 1 Met. 497 (1840) 4, 154 V. Gold, 2 Pick. 285 (1824) note after 285 May V. Foote, 7 Allen, 354 (1863) 23, 206, 239 .;. Shumway, 16 Gray, 86 (1860) . . notes after 285, 355 McGregor u. Crane, 98 Mass. 530 (1868) 159 McGurkine v. Bates, 113 Mass. 507 (1873) .... note after 241 Mclnerny'o. Samuels, 125 Mass. 425 (1878) 217 McLellan v. Dalton, 10 Mass. 190 (1813) 291 McLeod V. Freeman, 122 Mass. 441 (1877) 19 Merriam v. Haskins, 7 Allen, 346 (1863) 191 Merrill v. Roulstone, 14 Allen, 511 (1867) 90 MillettK. Lemon, 113 Mass. 355 (1873) .... 97,210,211,331 Moore v. Loring, 106 Mass. 455 (1871) 134, 326 Morrillti. Norton, 116 Mass. 487 (1875) 93,123,353 Morse v. Aldrich, 1 Met. 544, 546 (1840) 230 V. Dayton, 125 Mass. 47 (1878) 48, 50, 55, 73 V. Dayton, 128 Mass..451 (1880) 72 Mount Washington Glass Works v. Allen, 121 Mass. 283 (1876) 18 Mowry v. Chase, 100 Mass. 79, 85 (1868) . . 259, note after 285 Mowry's Case, 112 Mass. 394 (1873) 76, 77, 437 Murray v. Shearer, 7 Gush. 333 (1851) . . . 326, note after 326 Mutual Safety Fire Ins. Co. v. Woodward, 8 Allen, 148 (1864) 197, 222 Nash V. Coffey, 105 Mass. 341 (1870) 207 National Security Bank v. Hunnewell, 124 Mass. 260 (1878) . 106 Newcombi). Willcutt, 124 Mass. 178 (1878) 237 Newmarket National Bank D. Cram, 131 Mass. 204 (1881) . . 15 Nichols t). Thomas, 4 Mass. 232 (1808) note after 285 Niles V. Hancock, 3 Met. 568 (1842) 28, 251 Nowell V. Waitt, 121 Mass. 554 (1877) 323 Noyes v. Coburn, 11 Ciish. 307, note (1854) 173 XXVI TABLE OF CASES CITED. O'Brien v. Annis, 120 Mass. 143, 146 (1876) . O'ConneU v. Hovey, 126 Mass. 810, 312 (1879) Oystead v. Shed, 13 Mass. 520 (1816) .... 278 49,50,51,104, note after 336 . . . . 266 Pacific Insurance Company v. Canterbury, 104 Mass. 433 (1870) 339 Palmer v. Everett, 7 Allen, 358 (1863) 107 Paris, Inliabitauts of, v. Inliabitants of Hiram, 12 Mass. 262 (1815) note after 312 Park V. Johnston, 7 Cush. 265 (1851) 2, 223 Parker v. Page, 4 Gray, 533 (1855) 47, 50, 69 Partridge v. Emerson, 9 Mass. 122 (1812) 291 Patterson v. Philbrook, 9 Mass. 151 (1812) 296 Paul V. Holden, 14 Allen, 29 (1867) 8 Peck V. Emery, 1 Allen, 463 (1861) 99, 121 Penniman v. Cole, 8 Met. 496 (1844) note after 241 Petersilea v. Stone, 119 Mass. 465 (1876) 219 Phelps V. DaTis, 6 Allen, 287 (1863) 328 V. Stearns, 4 Gray, 105 (1855) note after 336 Phillips V. Gray, 1 Allen, 492 (1861) 370 Pierce v. Phillips, 101 Mass. 313 (1869) 200 Plummer v. Odiorne, 8 Gray, 246 (1857) 137 Porter w. Ingraham, 10 Mass. 88 (1813) note after 326 V. Sayward, 7 Mass. 377 (1811) note after 304 Pratt i>. Gardner, 2 Cush. 63 (1848) note after 123 t). Gibbs, 9 Cush. 82, 86 (1851) . . . 130, note after 148 Proctor V. Wood, Middlesex (1852) 171 Providence City Bank v. FuUerton, 11 Met. 73 (1846) . . 224, 233 Putnam v. Longley, 11 Pick. 487 (1831) 230 K. Williams, 2 Allen, 73 (1861) 239 Randall v. Bridge, 2 Mass. 549 (1807) Eeed v. FuUum, 2 Pick. 158 (1824) . V. Maynard, 11 Allen, 394 (1865) Rhodes v. Brooks, 16 Gray, 170 (1860) Rice V. Hale, 5 Cush. 288 (1849) . . Richards v. Crane, 7 Pick. 216 (1828) Richardson v. Smith, 1 Allen, 541 (1861) Richmond v. Willis, 13 Gray, 182 (1859) Ricker v. Gerrish, 124 Mass. 367 (1878) . Robbins v. Holman, 11 Cush. 26, 29 (1853) Russell V. Goodrich, 8 Allen, 150 (1864) .... 300 .... 142 note after 342 note after 256 note after 37 .... 308 240, 245, 349 note after 285 note after 123 note after 241 .... 30 TABLE OF CASES CITED. XXvii Saffordi;. Clark, 105 Mass. 389 (1870) 213 Salmon v. Nation, 109 Mass. 216 (1872) 205, 231 Saywardw. Alfred, 5 Mass. 244 (1809) note after 312 Sewall I). Sullivan, 108 Mass. 355 (1871) . . 115, note after 123 Shaw V. Eeed, 16 Mass. 450 (1820) note after 285 Shed V. Tileston, 8 Gray, 244 (1857) 190 Sheldon v. Grady, 116 Mass. 136 (1874) note after 355 Shepherd v. Jackson, 16 Gray, 699 (1860) 254 Simpson v. Bowker, 11 Gush. 306 (1853) 173 V. Trivett, 120 Mass. 147 (1876) . . 95, 101, 119, 332, 343 Skillint). Merrill, 16 Mass. 40 (1819) note after 342 Skinner w. Frost, 6 Allen, 285 (1863) 97,212 Slasson v. Brown, 20 Pick, 436, 440 (1838) 3, 187, 196 Smith V. Adams, 12 Met. 564 (1847) note after 148 V. Bean, 130 Mass. 298 (1881) 156 V. Keniston, 100 Mass. 172 (1868) .... note after 285 V. Randall, 1 Allen, 456, 469 (1861) .... 105, 247, 248 «. Stockbridge, 9 Mass. 221 (1812) .... note after 148 V. Way, 6 Allen, 212 (1863) note after 285 I/. Way, 9 Allen, 472 (1864) note after 285 SnellingcCoburn, 10 Allen, 344 (1865) 78 Sparhawkw. Bartlett, 2Mass. 188 (1806) . . . . note after 148 SpearK.Alden, 11 Mass. 444 (1814) 288 Stedmanu. Crane, 11 Met. 295 (1846) 266 Stevens V.Edwards, 12 Cush. 79 (1853) 171 Stewart v. Griswold, 133 Mass. MS. opinion (1883) 371 a, note after 367 StockweU V. Silloway, 100 Mass. 287 (1868) . 54, 60, 61, 68, note after 77 V. Silloway, 105 Mass. 517, 518 (1870) 54, 55, 56 V. Silloway, 113 Mass. 384 (1873) 67 Stone V. Carter, 13 Gray, 575 (1859) 151 V. Chamberlain, 7 Gray, 206 (1856) .... note after 285 V. Dickinson, 5 Allen, 29 (1862) note after 285 V. Russell, 11 Gray, 226 (1858) 102, 313 Stone's Case, 129 Mass. 156(1880) 283 Sullivan v. Jones, 2 Gray, 570 (1854) note after 285 Swainy. Mizner, 8Gray, 182 (1857) 266 Swan V. Emerson, 129 Mass. 289, 290 (1880) . . . note after 285 Sweeney v. Gillooly, 103 Mass. 549 (1870) 98 Sweetser v. Eaton, 14 Allen, 157 (1867) 22 XXviii TABLE OP OASES CITED. Taylor v. Clarke, 121 Mass. 319 (1876) 24X, 351 Thacheri;. Williams, 14 Gray, 324 (1859) . . 80,88,92,103,120 Thayer v. Felt, 4 Pick. 354 (1826) note after 241 Thompson's Case, 122 Mass. 428 (1877) . notes after 285, 355 Thornton v. Adams, 11 Gray, 391 (1858) ...... 116, 146 Toll V. Merriam, 11 Allen, 395 (1865) 26, 344 Townsend v. Way, 3 Allen, 245 (1861) 369 u. Way, 5 AUen, 426 (1862) 113 Townsend, Inhabitants of, v. Walcutt, 3 Met. 152 (1841) . 36, note after 312 Tracy v. Preble, 117 Mass. 4 (1875) 323 Trull V. Wheeler, 19 Pick. 240 (1837) 298 «. Wilson, 9 Mass. 154 (1812) 289 Tubbs V. Tukey, 3 Cush. 438, 440 (1849) .... note after 256 Tucker v. Bruce, 121 Mass. 400 (1876) 341 Turner v. Bartlett, 109 Mass. 503 (1872) 108 Twining v. Foot, 5 Cush. 512 (1850) 323 Underwood v. Brown, 106 Mass. 298 (1871) . . . note after 355 V. Clements, 16 Gray, 169 (1860) 5, 6, 169 V. Robinson, 106 Mass. 296 (1871) . notes after 169, 285 Van Kuran v. May, 7 Allen, 466 (1863) note after 123 Walker v. Haskell, 11 Mass. 177 (1814) note after 285 Walter v. Bacon, 8 Mass. 468 (1812) 143 Ward V. Clapp, 4 Met. 455 (1842) 334 Warren v. Gilmore, 11 Cush. 15 (1853) note after 326 WasSK. Bartlett, 10 Gray, 490 (1858) 126 Way V. Carlisle, 13 Allen, 398, 400 (1866) 239, 322 V. O'SuUivan, 106 Mass. 118 (1870) 191 V. Townsend, 4 Allen, 114 (1862) note after 123 u. Wheeler, 112 Mass. 87 (1873) 226 V. Wright, 5 Met; 380 (1843) note after 326 Webber v. Davis, 5 Allen, 393 (1862) . 118, 122, 155, 157, 243 277, 278, 345 Webster o. French, 11 Cush. 304 (1853) 173, 186 Wellington v. Small, 3 Cush. 145 (1845) .... note after 77 Wetherbee v. Aimee, 1 Alien, 462 . ,. 37 V. Martin, 10 Gray, 245, 248 (1857) . notes after 148; 355 Whitehead v. Varnum, 14 Pick. 523 (1833) 302 TABLE OF CASES CITED. Xxix Whithead v. Keyes, 1 Allen, 350 (1861) . . . 279, note after 304 V. Keyes, 3 Allen, 495, 501 (1862) 252, 260, 275, 276, note after 304 "Whiang V. Putnam, 17 Mass. 174 (1821) 127 Whittier v. Way, 6 Allen, 288 (1863) 81, 86, 179, 238 Whitton V. Bicknell, 3 Alien, 472 (1862) note after 123 Wiggin V. Peters, 1 Met. 127 (1840) 139 Willard v. Gage, 103 Mass. 354 (1869) 236 o. Kimball, 132 Mass. 214 (1882) . notes after 241, 331, 355 Willington v. Stearns, 1 Pick. 497 (1823) 267 Willis V. Howard, 7 Allen, 266 (1863) 313, 320, 321 Wilmarth v. Burt, 7 Met. 257 (1843) note after 285 Wixon V. Lapham, 5 Allen, 206 (1862) note after 285 Wood V. Melius, 8 Allen, 434 (1864) 153 V. Washburn, 2 Pick. 24 (182-3) ... .... 131 Woods V. Varnum, 21 Pick. 165 (1838) note after 355 Woodward v. Hopkins, 2 Gray, 210 (1854) 318 Worcester County v. Sclilesinger, 16 Gray, 166 (1860) . . 311 Tale V. Wbeelock, 109 Mass. 502 (1872) .... note after 148 Young V. Capen, 7 Met. 287 (1843) 221 V. Makepeace, 108 Mass. 238 (1871) .... note after 285 DISCUSSION THE STATUTES AND CASES. JURISDICTION. 1. Some of the peculiarities of the jurisdiction of magistrates, who are enabled by the statutes to admin- ister the poor-debtor law, are its dependence upon the regularity of previous proceedings ; its nature as a jur- isdiction that seems to be one of individual magistrates, as distinguished from courts, even when they are jus- tices of courts ; ^ its limitation to the respective counties of the magistrates ; its dependence upon the attendance of the magistrates within fixed hours ; the usual need of the debtor's appearance in person; the distinction be- tween the debtor's submission to examination by the magistrate, and his subjection to the custody of an officer under a precept of a court to which the magis- trate may not belong ; the effect of the expiration of an hour upon the- jurisdiction in the absence of one of the parties when the magistrate does not exercise his power to keep a hearing open ; the power of fixing dif- ferent places for hearings; the power to try and sen- ^ The act of 1862, o. 162, concerning female judgment debt- ors, incorporated in P. S. c. 162, §§ 6-15, speaks of applying to "the court (§ 7)." This is an exception. 1 2 STATUTES AND CASES. tence for fraud persons arrested on civil process ; and the curious addition, to a jurisdiction thus limited, of a power, like that of equity, to order judgment debtors under certain circumstances to produce, surrender, transfer, assign, or convey their property "as the magistrate may direct," under P. S. c. 162, § 21. The following cases are stated in the past tense, and are usually followed by a statement or question in the present tense referring to the latest revision of the statutes, and indicating the opinion or inclination of the author. This constant reference is adopted to avoid misleading the reader in the event of future amendments of the statutes and because it is a con- venient method of bringing the cases to bear upon the present statutes. 2. Discharge. — Dependent upon Preliminary Pro- ceedings. — It was held that the jurisdiction of the magistrates, and their authority to administer oaths and to grant discharges to defendants and judgment debtors, depended upon compliance with the prelimi- nary requisites of the statutes in regard to notices to plaintiffs and judgment creditors.^ The law remains so under P. S. c. 162. 3. Preliminary Proceedings irregular. — ■ Certificate not conclusive. — A magistrate's certificate w^as not conclusive of the regularity of all the previous pro- ceedings.2 The law remains sounder P. S. c. 162. 4. Certificate. — Whether conclusive. — Qucere : Is a certificate necessary, because of P. S. c. 162, § 17, or for anj' reason, to make an arrest legal after an affi- davit under P. S. c. 162, § 25, and can the magistrate 1 Park V. Johnston, 7 Cush. 265 (1851). Debt on Bond. 2 Slasson V. Brown, 20 Pick. 436 (1838). Debt on Bond. JUEISDICXION. 3 orally " authorize " the arrest ? If a certificate be necessary, would a magistrate " authorize " an arrest according to P. S. c. 162, § 25, who should make a certificate like the certificate provided for by § 17, and without the words, " I authorize the arrest," or words to that effect? Such words are shown by Manuel v. Bates, 104 Mass. 354, to be unnecessary for certificates under § 17, although the usual prac- tice is to use them even there. If not, and if the magistrate under § 25 has the authority which that section seems to give him to " authorize " the arrest, then is his certificate that he does authorize the arrest conclusive of the regularity of the affidavits required by that section? ^ But under P. S. c. 162, § 25, can a magistrate for one county " authorize," notwithstanding § 17, an arrest which is made in an- other county? And does the rule of § 17 concerning " the application for a certificate " apply to § 25, which mentions no certificate? When his notice, under P. S. c. 162, §§ 17 and 18, is not authoritative out- side of his own county, if the debtor lives there, how can he " authorize " an arrest outside of it in such a case, unless it be given to him by that § 25 ? But the meaning of that section is in question. Arrests can be made in any county upon writs with certifi- cates under P. S. c. 162, § 17, annexed to them, after § 17 has been satisfied by an " application " in the proper county ; because such writs are the authority, — the certificates merely showing that the statutory requirements for the protection of the debtor have been complied with ; and the practice of some magis- 1 See Marsh v. Bancroft, 1 Met. 497 ; and Haynes v. Saun- ders, 11 Cush. 537, in the chapter on Affidavits and Certificates. 4 STATUTES AND CASES. trates of adding " I authorize the arrest ... if his arrest is authorized by law," being surplusage, except so far as it authorizes acting after sunset by authority of the writs to arrest.^ Unless § 25 is to be construed to give a magistrate a power in other counties, which is inconsistent with his want of power in other coun- ties* under § 17 and § 18, then it would seem that perhaps a certificate in a form similar to that of certi- ficates under § 17, without the word " authorize," would satisfy the term " authorize " in § 25. This construction might prevent the construction that the magistrate's authority, whether by certificate or oral, is conclusive, under § 25, of the regularity of the affi- davit required by § 25. It might be argued that § 25 is essentially a part of § 17, and subject to its prohibition, " no person," and also to its requirement of a certificate, and there- fore a similar certificate is required under § 25, and that such a certificate is not conclusive of the regu- larity of the affidavit, which must be annexed to the writ under § 17, and is to be judged by what it in fact is when so annexed, notwithstanding the magis- trate's certificate annexed with it. Since the statute is obscure, the safest course is for the magistrate, when acting under § 25, to issue a certificate which would satisfy § 17, and in it also expressly and un- qualifiedly to " authorize " the arrest, in order to satisfy § 25. This seems to satisfy all the the- ories. 5. Recognizance. — Condition to appear in '■'■Court." — Under St. 1857, c. 141, a justice of a police court 1 See Manuel v. Bates, 104 Mass. 354. JUEISDICTION. 5 had not jurisdiction to take a recognizance with a condition requiring the debtor to surrender himself " before said police court." Hence a demurrer to the declaration in the action on the recognizance was sus- tained. The court (Chapman, J.) said substantially that the statute was framed for appearance before the magistrates, as distinguished from courts, to avoid unnecessary delay .^ The law remains so under P. S. c. 162, §§ 28, 36. 6. Special Justice. — A special justice of a police court, acting at the request of its justice, who was then engaged therein, was held, to have jurisdiction (under G. S. c. 124, § 9; St. 1860, c. 215, § 2) to examine and discharge a debtor after a recognizance under G. S. c. 124, § 10, whether " acting as the official organ of the court, or as a magistrate in the performance of a ministerial act."^ The law remains so under P. S. c. 162, § 27. 7. Two Justices. — Substitute. '— Under Eev. St. c. 98, § 4, a debtor whose examination had been begun before two justices, and was concluded at a subsequent hearing, when one of the said justices was absent, and a new one took his place, was held to havp been rightfully discharged.^ 8. Notice. — One Justice of the Quorum. — A notice under G. S. c. 124, § 12, issued to a judgment cred- 1 Underwood ». Clements, 16 Gray, 169 (1860), Contract on Keoognizance. See Hyde v. Malley, 121 Mass. 388, in the chap- ter on Affidavits and Certificates. 2 Clement v. Sargent, 100 Mass. 300 (1868), Contract on Re- cognizance. Compare Dike v. Story, 7 Allen, 349, Inability of the Standing Justice. Underwood v. Clements, 16 Gray, 1S9, before "court." 8 Brown v. Lakeman, 5 Met. 347 (1842), Debt on Bond. 6 STATUTES AND CASES. itor by one justice of the quorum, was held to be invalid. Under § 9 " the tribunal " was two.^ 9. Justice of Peace and Quorum. — Bscital. — Con- dition Precedent. — Finding other Magistrate. — Under St. 1857, c. 141, § 4, the words, " if no such magis- trate can be conveniently found," were held to pre- vent the jurisdiction of a justice of the peace and of the quorum!, it appearing in evidence that such other magistrate could be found.^ 10. Evidence. — Justice of Peace and Quorum. — Finding other Magistrate. — The jurisdiction of a jus- tice of the peace and of the quorum under St. 1867, c. 141, § 4, was said not to depend on his diligence in inquiring whether one of the other magistrates could be found ; nor upon his opinion upon that question ; nor upon what hearsay there was on the points. The material point was said to be the fact. Therefore questions about the above matters were held to have been rightly reject&d.^ Such magistrates are omitted from P. S. c. 162, § 27. It was also held that other magistrates named in St. 1857, c. 141, § 4, were rightly allowed to testify as to the distances of their residences and offices from the resi- dence and place of examination of the debtor, and from the residence of the justice who acted, and that 'they were at home and disengaged, on and immedi- ately before the day of the examination. 1 Paul V. Holden, M Allen, 29 (1867), Contract on Recogni- zance. 2 Lang B. Bunker, 1 Allen, 256 (1861), Contract on Recogni- zance. " Lang V. Bunker, 6 Allen, 61 (1863), Contract on Recogni- zance, See Lang v. Bunker, 1 Allen, 256. JURISDICTION. 7 11. Special Justice. — Recognizance. — A special jus- tice of a police court could take a recognizance under G. S. c. 124, § 10, in the absence of the standing jus- tice, and at a time other than a regularly appointed session of the court. And the recognizance was good although the memorandum of it did not state the ab- sence of the standing justice ; and it seemed that, the fact of absence being proved, it was unnecessary to amend tlie record ; but an amendment of the memo- randum, stating the fact, was held to have been rightly allowed.^ The law remains so under P. S. c. 162. 12. Two Justices after amended Statute. — Two jus- tices of the peace and of the quorum acted according to Rev. Sts. c. 98, after St. 1855, c. 444, and St. 1857, 0. 141, changing the provisions of Rev. Sts. c. 98, and consequently the discharge was invalid. ^ 13. Recognizance. — Condition. — Justice of the Peace. — Amendment. — Although a recognizance taken April 1, 1862, under G. S. c. 124, § 10, contained the words, " to deliver himself up for examination, giving notice in the manner required in and by the 124th chapter of the General Statutes," nevertheless St. 1860, c. 215, had amended G. S. c. 124, § 15, and a single justice of the peace had no jurisdiction left to examine and discharge the debtor, although referred to in § 15 as it formerly stood.^ P. S. c. 162, § 34, is according to that amendment. ' Dike V. Story, 7 Allen, 349 (1863), Contract on Recogni- zance. 2 Barker v. Ryan, 1 Allen, 72 (1861), Contract on Bail Bond. s Dike V. Story, 7 Allen, 349 (1868), Contract on Recogni- zance. 8 STATUTES AND CASES. 14. Magistrate. — Changing Domicile. — Trial Jus- tice. — Atrial justice having jurisdiction, and before ■whom proceedings after a recognizance and on charges of fraud were pending, changed his domicile, and there- by ceased to be a magistrate under G. S. c. 120, § 35. Another magistrate attended at the time appointed, but after the change of domicile, and ordered a con- tinuance, but it was held that he had no jurisdiction. And Endicott, J., said : " The statutes do not make any provision for the continuance of the proceedings when a magistrate is no longer competent to act," notwithstanding St. 1870, c. 77.i This affects P. S. c. 162, § 67. But see P. S. c. 159, § 50. 15. Notice to Debtor to appear. — Recognizance. — Arrest. — Another County. — Under St. 1877, c. 250, § 1, a master in chancery had not jurisdiction to issue notice to be served outside of his own county. Hence an arrest and recognizance based upon such notice were void.^ But St. 1881, c. 263, § 3, incorporated in P. S. c. 162, § 17, modifies this as follows : " If the judgment debtor lives, or has his usual place of busi- ness, in any county in this State, the application for a certificate . . . shall be made in that county; other- wise it may be made in any county." 16. Arrest. — Default. — Notice. — Waiver. — Sec- ond Magistrate. — A debtor who had defaulted before one magistrate, after an examination under St. 1877, c. 250, upon the first charge in G. S. c. 124, § 5, was arrested upon a pluries execution, issued afterwards, 1 Godfrey v. Munyan, 120 Mass. 240 (1876), Contract on Re- cognizance. 2 Newmarket National Bank v. Cram, 131 Mass. 204 (1881), Contract on Recognizance. JTTEISDICTION. 9 with a certificate of arrest stating such default before the first magistrate, signed and issued by a second magistrate, without notice to the debtor. This arrest was illegal, for the second magistrate had no jurisdic- tion ; and the facts that the debtor, after such arrest, recognized, submitted to an examination, and took the poor debtor's oath, did not amount to a waiver of the false imprisonment.^ The law remains so under P. S. c. 162, §§ 17, 18. 17. Attendance. — Magistrate absent. — Hour. — A magistrate failed to attend within the hour after the time to which an examination had been continued. Both parties were present when he arrived, but his jurisdiction was held to have expired with the hour.^ The law remains so under P. S. c. 162. But the dis- tinctions in the opinion should be examined. 18. Condition. — Waiver of Attendance. — Magis- trate and Debtor. — A creditor may waive the atten- dance of the magistrate and the appearance of the debtor at the appointed time and place, and cannot afterwards maintain a claim of a breach of the recog- nizance (under G. S. c. 124, § 10), because his waiver was relied upon by the debtor.^ The law remains so under P. S. c. 162, §§ 28, 36. 19. Appearance by Attorney only . — Discharge. — At a hearing upon charges of fraud, a debtor may appear by attorney, instead of in person, to move in arrest of 1 Carleton v. Akron S. P. Co.,' 129 Mass. 40 (1880), Tort for False Imprisonment. 2 Hills V. Jones, 122 Mass. 412 (1877), Contract on Recogni- zance. 8 Mount Wash. Glass W. o. Allen, 121 Mass. 283 (1876), Contract on Recognizance. 10 STATUTES AND CASES. judgment, and the magistrate has jurisdiction to con- tinue the case under G. S. c. 124, §§ 16, 34, and to discharge the debtor if the creditor does not appear accordingly.-' The law remains so under G. S. c. 162, §§ 35, 52. 20. Mistaken information hy Magistrate about Time. — Default of Debtor. — Appearance. — The decision of a magistrate that a debtor under a recognizance had defaulted, when the occasion of the 'default was mistaken information about the hour, given informally by the magistrate himself, was not cause for granting a petition for a writ of certiorari.^ The law remains so under P. S. c. 162. 21. Attendance of Debtor. — Recognizance. — Re- cess. — A magistrate, under G. S. c. 124, § 16, could, allow a debtor who was present, but in doubt about submitting to examination, to leave to consult coun- sel, and to return to be examined after the expiration of the hour, and such conduct by the debtor was not a breach of the recognizance.^ The magistrate's con- sent implied that the debtor was to have a " reason- able time," in the words of Ames, J. The law remains so under P. S. c. 162, § 35. But the debtor must, upon his return, make known to the magistrate his conclusion to submit to an examination.* 1 McLeod V. rreeman, 122 Mass. 441 (1877), Contract on Recognizance. 2 Carlton v. Choate, 5 Allen, 577 (1863), Petition for Writ of Certiorari. 8 Cook V. Thayer, 121 Mass. 415 (1877), Contract on Recogni- zance. * Cook V. Thayer, 123 Mass. 333 (1877), same case on new- trial. JURISDICTION. 11 22. Jurisdiction exhausted hy Sour. — Attendance. — The creditor appeared and waited until after the hour expired, and then departed. This was held to have exhausted the magistrate's jurisdiction, although the debtor came in afterwards, and although the ma- gistrate might have kept the hearing open, or post- poned or adjourned it.^ The law remains so under P. S. c. 162. 23. Adjournment. — Creditor not appearing . — After due service of notice, although a creditor did not ap- pear, the magistrate could adjourn the case under G. S. c. 124, § 16, corresponding now to P. S. c. 162, § 35, and, upon the creditor's not appearing at the second hearing, could discharge the debtor under G. S. c. 124, § 48, corresponding now to P. S. c. 162, § 68.^ The law remains so under P. S. c. 162. 24. Sour. — Keeping Searing open. — A magistrate could keep a hearing open beyond the expiration of the hour for the purpose of considering a motion made within it, notwithstanding the departure of the creditor who objected to the motion ; and neither such departure nor the expiration of the hour affected the jurisdiction.^ The law remains so under P. S. c. 162, §§ 18, 35. 25. Attendance. — Hour. — Keeping Searing open. — A magistrate under G. S. c. 124, § 16, could adjourn an examination to nine o'clock, A. M., with leave to the 1 Sweetser v. Eaton, 14 Allen, 157 (1867), Contract on Re- cognizance. 2 May V. Foote, 7 Allen, 354 (1863), Contract on Recogni- zance. s Mann v. Mirick, 11 Allen, 29 (1865), Contract on Recogni- zance. 12 STATUTES AND CASES. debtor to appear at any time before twelve o'clock, noon, whether the creditor consented or not, and notwithstanding the creditor's attendance before and until ten o'clock, and his objection.^ Soule, J., said: " Until the jurisdiction is gone, the matter of keeping the proceedings open, postponing, or adjourning, is wholly one of discretion." (p. 386.) The law re- mains so under P. S. c. 162, § 35. 26. Attendance. — Adjournment. — Recess. — If a debtor appears before the expiration of the hour, and is then absent until after its expiration, but returns soon after, the magistrate could, under G. S. c. 124, § 16, wait for him, in spite of the creditor's objection, without any express permission, and by resuming the suspended proceedings upon the debtor's return, the magistrate sanctioned his absence.^ The law remains so under P. S. c. 162, § 35. 27. Fast Day. — Discharge. — Adjournment. — A magistrate has no jurisdiction to discharge a debtor on Fast Day. Hence there was a breach of a recog- nizance under G. S. c. 124, § 10. The court referred to the prohibition of courts, except for certain busi- ness, under G. S. c. 122, § 4, now P. S. c. 160, § 4; and the magistrate's power of adjournment under G. S. c. 124, § 16, now P. S. c. 162, § 35.3 28. Attendance of Magistrates and Parties. — Two magistrates had been present at the time and place appointed for an examination during the hour, neither 1 Lincbln v. Cook, 124 Mass. 383 (1878), Contract on Recog- nizance. 2 Toll V. Merriam, 11 Allen, 895 (1865), Contract on Recog- nizance. * Estes V. Mitchell, 14 Allen, 156 (1867), Contract on Recog- JT7KISDICTI0N. 13 judgment creditor nor debtor having appeared. Ten minutes after the expiration of the hour the magis- trates left the place and met the debtor on his way thither. It was held that they had jurisdiction to return and discharge him.^ Does not this decision apply still to cases where notice is given by judgment debtors and defendants, who have not recognized under P. S. c. 162, § 28, to creditors and plaintiffs, under -P. S. c. 162, § 31, and also to cases where notice is given by judgment creditors to debtors under P. S. c. 162, § 18 ? And does it not at least tend to establish the construction that under the present stat- ute (P. S. c. 162, §§ 18, 31), and when there has been no recognizance under § 28, the attendance of neither party during the hour is essential to the juris- diction of the attending magistrate, and that if, after the hour during which neither party has appeared, one of the parties appears, the magistrate may proceed as if there had been no delay ? Since there is no recognizance requiring the defendant or debtor to "appear at the time fixed," the point of jurisdiction is not necessarily controlled by the creditor's rights alone. If this be established, it seems to be according to the common sense which characterizes the decisions upon the embarrassing statutes concerning the poor debtor law, because, the notice having been issued and served at the instance of one party, he knows that if he is not present by the end of the hour, his privilege is gone if the other party be there then ; and the other party upon whom the notice has been served knows, 1 Niles V. Hancock, 3 Met. 568 (1842), Debt on Boud. See opinion for discussion of jurisdiction. 14 STATUTES AND CASES. or is affected with legal notice of, the fact that his privilege will expire with the hour, if his adversary be there then. Both parties also would have an equal advantage in an opportunity to appear after the hour, if that is to be the rule of construction. Then the one who appears first after the hour has elapsed would prevail. There would seem to be no more difficulty in such a plan, as this, where there is a second's difference in the time of the appearance of the two parties, than there is where one has appeared before the end of the hour, and the other appears a second afterwards. When a discharge, or an applica- tion for a certificate for an arrest, has been granted, then the party to whom it has been granted has suc- ceeded, and the arrival of the other party a second after his privilege expired seems to be irrelevant. Where a notice has been issued under P. S. c. 162, § 18, and the creditor alone appears, the magistrate may wait until the expiration of the hour before hear- ing the reasons in proof of the affidavit for the arrest of the debtor who may appear to be examined. Then the debtor might arrive shortly after the hour, and before the creditor had stated the reasons for issuing the certificate for the arrest. But this emergency does not seem to conflict with the above construction, for the point of the fixed time and place, and of the hour allowed to expire after the fixed time, is the sufficiency of notice under the statute (P. S. c. 162, §§ 18, 19, and also §§ 31, 32), which allows for pre- paration and travel. Such notice and the time re- quired for it having been exhausted, the privilege of the party entitled to it to interfere with the applica- tion of the other party, who has appeared — either JUEISDICTION. 15 for a certificate for arrest, in the case supposed, or for a discharge, if a debtor or defendant were the applicant, Avould expire with the time thus covered by the notice. This view does not seem to be incon- sistent with the words of the statute (P. S. c. 162, §§ 18, 20, 24) in view of the liberal principles of con- struction adopted by Niles v. Hancock. But, on the other hand, it may be argued that § 20 says, " If the judgment debtor appears ... at the time and place fixed, he shall be examined," and says, "if the debtor fails to appear at the examination, . . . the arrest may be authorized," and § 24 says, " If the debtor appears as (Erected by the magistrate, . . . the magis- trate shall not grant a certificate authorizing an ar- rest," and that these words seem to imply that the time "fixed " and " directed " for the debtor's appear- ance is the only time when the debtor can appear under the protection of the statute. But in view of Niles V. Hancock, these words seem to fix the time during which the magistrate must hear the debtor if lie appears, rather than to limit the time after which the magistrate cannot hear him. As to jurisdiction, the magistrate seems to get that by the notice proved by the ofEcer's return, and his jurisdiction, once obtained, according to Niles v. Hancock, would seem to continue until he had decided or discontinued the case, or the parties had withdrawn it. As to the rights of the par- ties, the party who does not appear during the hour, or afterward, before his adversary appears afterward, suffers no damage which he has not brought upon himself by his default. The justice of this construc- tion towards the sureties seems to be alluded to in Niles V. Hancock. In the case of a judgment debtor 16 STATUTES AND CASES. served with notice (under P. S. c. 162, § 18), who appears after the hour, no sureties' interests are then at stake, but the creditor has neglected to appear to examine the debtor. Is he not therefore entitled to the benefit of freedom for three years under P. S. c. 162, § 24. Or if the creditor appears late, and the debtor does not appear also, the same reason favors the creditor's having the advantage of the debtor's default. The construction suggested is consistent with P. S. c. 162, § 68. 29. Examination of Debtor after Decision in his Favor. — Contempt. — After a magistrate has stated to the debtor, after - examination, that the poor debtor's oath will be administered to him, unless the parties consent to further proceedings, and they do not consent, the magistrate's duty is to administer the oath; and he has no authority to examine the debtor further. Hence a commitment for contempt was held to be void.^ The law remains so under P. S. c. 162. 30. Adjournment after Refusal of Oath. — A magis- trate had no authority to adjourn the case after he had decided to refuse the poor debtor's oath to the debtor. Consequently a debtor who departed after such a decision and adjournment, and did not appear again, did not thereby commit a breach of a recog- nizance under G. S. c. 124, § 10. The creditor neglected at his peril to have the officer present to take the debtor into custody immediately upon that decision.^ The law remains so under P. S. c. 162, §§ 28, 36. 1 Doane v. Bartlett, 4 Allen, 74 (1862), Habeas Corpus. 2 Russell V. Goodrich, 8 Allen, 150 (1864), Contract on Re- cognizance. JUKISDICTION. 17 31. Examination after Release by Agreement. — Qucere, whether according to P. S. c. 162, under §§ 27, 28, 36, a magistrate has jurisdiction to examine a defendant or debtor after a release from arrest with- out either bail or recognizance by the defendant or a recognizance by the judgment debtor, even when both parties agree to this arrangement for the pur- pose of having an examination? Agreement alone cannot bestow jurisdiction. If the debtor did not keep the agreement, he could not be arrested again on the same execution,^ nor, it seems, upon any other execution which may be issued on the same judg- ment, " the arrest of the debtor upon execution, by order of the creditor being considered even as a satis- faction at the common law."^ And whether the arrest be upon mesne process or execution, the provision of § 27 for his being taken before a magistrate is to give him an opportunity to begin proceedings to try to ob- tain a release from arrest. This statutory opportunity is the sole reason and basis of the magistrate's jurisdic- tion to allow the defendant or debtor to appear as such when " taken " before him. If the magistrate has not jurisdiction unless one under arrest is " taken " before him, how can such jurisdiction, even when so begun, continue when the arrest ceases, unless his legal and possible physical subjection to his surety under a bail bond or a recognizance has taken the place of the custody of the officer, ac- cording to the provision of § 27? If the debtor is released, how can the function of the magistrate, 1 Doane v. Bartlett, 4 Allen, 74 (1862), Habeas Corpus. 2 Little V. Newburyport Bank, 14 Mass. 443 (1817), Audita Querela. 2 18 STATUTES AND CASES. which is merely intended to make the release pos- sible under certain conditions, come into play ? 32. Magistrate interested. — It seems that a magis- trate " who was jointly liable with the debtor on the original judgment and execution which the plaintiff was seeking to enforce, and who had been examined as a witness" on charges of fraud, cannot "act as a magistrate in any stage of the proceedings." ^ 33. Creditor's Attorney's Clerk as Magistrate. -r The fact that a justice of the peace was a studen^;-at- law and a paid clerk of the creditor's attorneyNdid not disqualify him from taking the affidavit of an applicant under G. S. c. 124, § 5, for the debtor's arrest ; and the fact that he appeared for the creditor's attorney and asked for a continuance is not material.^ The law remains so under P. S. c. 162, § 17. 34. Debtor's Attorney as Magistrate. — Upon con- flicting evidence, the question whether a magistrate acting after a recognizance under G. S. c. 124, § 10, was the debtor's attorney, was held to have been properly left to the jury which had found for the plaintiff in an action for a breach.^ 35. lamination. — Revision of Magistrate's De- cision. — Writ of Certiorari. — The magistrate's per- mission of the poor debtor's oath, under St. 1817, 0. 186, § 1, was not subject to revision on a writ of certiorari.* The law remains so under P. S. c. 162. 1 Endicott, J., in Godfrey v. Munyan, 120 Mass. 240 (243) (1876). 2 Knight y. Sampson, 99 Mass. 36 (1868), Contract on Recog- nizance. 8 Kane v. Learned, 117 Mass. 190 (1875), Contract on Kecog- nizance. * Hayward's Case, 10 Pick. 358 (1830), Petition for Writ of Certiorari. JURISDICTION. 19 36. Application for Oath coneerning leaving State. — Res Adjudicata. — Writ of Prohibition. — After a defendant, arrested upon mesne process, had failed to satisfy a magistrate, under Gr. S. c. 124, § 18, that he did not intend to leave the State, no magistrate had jurisdiction under that chapter to consider another application for the same oath. A writ of prohibition was issued against a magistrate who attempted it.^ The law remains the same under P. S. c. 162, § 37, which includes arrests upon execution, incorporated from St. 1877, c. 250, § 5. 37. Application after Recognizance. — After a recog- nizance under St. 1857, c. 141, a judgment debtor did not need to apply to the same magistrate to take the poor debtor's oath.^ The law remains so under P. S. c. 162, § 28. Any "magistrate authorized to act" may take jurisdiction when the defendant or debtor delivers "himself up for examination" accord- ing to the recognizance. 1 Henshaw u. Cotton, 127 Mass. 60 (1879). See the same case for a discussion of the meaning of G. S. c. 124, § 25, which applies also to P. S. u. 162, § 43. 2 Elliott V. AViUis, 1 Allen, 461 (1861), Contract on Recog- nizance; also Wetherbee v. Amee, reported in note to same case, p. 462, Contract on Recognizance. Note. — See also the following cases concerning jurisdic- tion : — Two Justices of the Peace and of the Quorum. — " This system prevailed from the year 1787 to the passage of St. 1855, u. 444." This followed by St. 1857, c. 141. Dewey, J., in Lang v. Bun- ker, 1 Allen, 256 (1861). Magistrate not present within Hour. — Parties present. — Breach of Recognizance. — Hills v. Jones, 122 Mass. 412 (1877), Con- tract on Recognizance. Magistrates. — United States Commissioners. — " The act of the 20 STATUTES AND CASES. United States of 1839 (c. 35), abolishing or modifying the power of imprisonment for debt, did not, in this State, supersede the former provisions of the law of the United States providing for the appointment of commissioners to administer the poor debt- or's oath." Lockhm-st v. West, 7 Met. 230 (1843), Debt on Bond. Ne exeat. — Arrest and Poor Debtor^ Oath. — Although the court did not think an arrest of a defendant in equity on a writ of ne exeat was analogous to an arrest on mesne process, the court intimated that its equity jurisdiction included authority to grant an application for a discharge upon the poor debtor's oath, and ordered an examination "in the same majma^^gnd with the same effect," and a report by a master ip^^anceryj Kice v. Hale, 5 Cush. 238 (1849), Bill in Equity, tetition^r-Ne exeat. Magistrate not present, — Blanchard ». Walker, 4 Cush. 455 (1849), Debt. ^_ Arrest after Voluntary Escape. — Doane v. Bj,ker, 6 Allen, 260 (1863), Tort against Deputy Sheriff. Charges of Fraud stricken from, Recordi — At a trial upon charges of fraud in the Superior Court "Ihere was a verdict of guilty upon several charges. The defendant moved for a new trial, and the judge set aside the verdict upon several of the charges. Then the plaintiff moved to have those charges stricken from the record, and it was so ordered and done. The defend- ant excepted, but it was held to be within the discretion of the court. Chapin v. Haley, 133 Mass. 127 (1882), Charges of Fraud. See also the title Jurisdiction, in, the Index, and the chapter on "Authorizing an Akeest " (371 a), which states a case< decided since this chapter was printed. PEOPEETY, FRAUD, ETC. 21 PROPERTY, FRAUD, RES ADJUDICATA, AND THE, ISSUES UNDER PUBLIC STATUTES, C. 162, §§ 21, 24, AND 39. 38. The following question is discussed at length because it has given occasion to some litigation, and also because it is a convenient means of presenting an illustration of the working of the common law, the statutes, and the practice as they come together in actual emergencies. After a judgment debtor has been examined touch- ing his estate and effects, and the disposal thereof, according to (the act of 1877, c. 260, § 2, or) P. S. c. 162, §§ 20, 21, and has received, according to the practice, a certificate from the magistrate refusing to grant a certificate authorizing his arrest, and stating, among other things, that it does not appear that the debtor has any estate or property of any kind above the amount of f 20,^ not exempt from being taken on execution, and after the debtor has been subsequently arrested upon one or more of the last five charges of § 17, and has applied to a magistrate to take the oath for the relief of poor debtors, can the magistrate exam- ine him " concerning his estate and effects, the disposal thereof, and his ability to pay the debt or satisfy the " Act of 1877 " to the amount of $20," or P. S. o. 162, § 21, " above the amount of $20," from act of 1881, c. 263, § 1, a different issue, which, if it had existed before, might have prevented the question. 22 STATUTES AND CASES. cause of action for which he is arrested," under P. S. c. 162, § 38? That this question should be answered in the affirmative seems to the writer to be clearly correct, whatever may be thought of some of the incidental remarks in the following discussion. 39. The first objection made to such an examina- tion is that it is forbidden by § 24, which provides that, in case of the debtor's obedience, " the judgment creditor shall not, for the period of three years there- after, make application for the arrest or examination of such debtor upon the same charge and cause of action." This objection arises from a misunderstand- ing of that § 24 (which corresponds to § 4 of the c. 250 of the acts of 1877), as has been pointed out by Morton, J., in Frost's Case, 127 Mass. 560. In that case, the arrest of the debtor upon the second charge of § 5, c. 124, General Statutes (corresponding to P. S. c. 162, § 17), after an examination and refusal of a certificate of arrest upon the first charge under the act of 1877 (corresponding to P. S. c. 162, § 18, et seq.), was objected to by the debtor for this reason, among others, that, in order to get discharged, he would have to apply to take the oath for the relief of poor debtors, and be subjected a second time to an examination concerning his property. But Morton, J., said, in his opinion, when speaking of the prohibi- tion in the said fourth section, c. 250, act of 1877 (P. S. c. 162, § 24) : " The provision can only apply to an application under that statute, there being no other case in which the creditor makes application for an examination of the debtor. The statute was not intended to forbid an examination within three years upon other charges, in the course of pro- PEOPERTY, FEATJD,, ETC. 23 ceedings instituted by the debtor for the purpose of taking the poor debtor's oath after an arrest." ^ The creditor never makes application for an exami- nation of the debtor when the debtor applies to take the oath for the relief of poor debtors. Under G. S. c. 124, § 5 (corresponding to P. S. c. 162, § 17) the creditor has finished his part of the process for enforcing his claim by proving to the satisfaction of a magistrate that his affidavit is true, and by obtaining the magistrate's certificate and directing the officer to arrest the debtor. Then if the debtor wishes to be discharged, and chooses to apply to take the oath for the relief of poor debtors, he invokes a new pro- cess, which consists, in the language of Morton, J., of " proceedings initiated by the debtor for the pur- pose of taking the poor debtor's oath after an arrest." In the course of such proceedings it is the debtor who is to express not only his desire to " take an oath," but also his desire " to have a time fixed therefor." (G. S. c. 124, § 12, corresponding to P. S. c. 162, § 31). The magistrate appoints the time and place for the debtor's examination, and issues notice thereof to the creditor. Then if the creditor, or some one in his behalf, " shall not attend the examination " which has been thus appointed and announced to him with- out any application on his part, or if the creditor " at any time after request makes default in payment of the fees " (P. S. c. 162, § 68), the " debtor shall, without examination and without payment of any fees, be discharged from arrest or imprisonment, and shall be forever exempt from arrest on the same ex- 1 Frost's Case, 127 Mass. 550, 553 (1879), Habeas Corpus. 24 STATUTES AND CASES. ecution, or any process founded on the judgment" (G. S. c. 124, § 48, corresponding to P. S. c. 162, § 68). Hence it is to preserve his own rights under the arrest which has been already made, and to pre- vent the debtor from getting discharged from such arrest, by taldng advantage of the failure of the creditor to appear, that the creditor, in response to the magistrate's notice, appears before him at the appointed time. The creditor applies for nothing. He opposes the application. Even if he afterwards iiles a charge of fraud, it is an "answer" (48) "inci- dental" to the application (65). If the debtor has also appeared, then the magistrate, without any appli- cation by the creditor who has paid the fee, is re- quired to examine the debtor, according to G. S. c. 124, § 19 (corresponding to P. S. c. 162, § 38), which provides that, if the " debtor has given no- tice that he desires to take the oath for the relief of poor debtors, the magistrate shall examine him on oath concerning his estate and effects, the disposal thereof, and his ability to pay the>debt or satisfy the cause of action for which he is arrested." This sec- tion also requires that the magistrate " shall hear any legal and .pertinent evidence that may be introduced by either party," and provides that the "creditor may, upon such examination, propose to the . . . debtor any interrogatories pertinent to the inquiry." Upon such an examination, conducted by the magis- trate under the positive mandate of the statute in order to determine whether the desire of the debtor shall be granted, any " interrogatories pertinent to the inquiry " that may be proposed by the creditor must plainly be in the nature of a cross-examination of PROPERTY, FRAUD, ETC. 25 the debtor, and are evidently so contemplated by the istatute. It is well known that, in practice, the mag- istrate asks the debtor the first question in the exam- ination, inquiring more or less particularly whether he ' has any property not exempt from execution, and then, the debtor having usually answered in the negative, the creditor or his counsel proceeds to cross-examine him. Afterward the debtor is questioned by his own counsel, or, if he has no counsel, by the magis- trate, upon a redirect examination, and the case pro- ceeds, in general, as is usual in the examination of any witness. Such a proceeding is very far from an "application" by the creditor for an examination of the debtor. The examination will go on, even if the creditor does nothing but " attend the examination " in the words of G. S. e. 124, § 48, or P. S. c. 162, § 68, and pay the fee to the magistrate. It is the magistrate's examination of the debtor which G. S. c. 124, § 19, or P. S. c. 162, § 38, says that the magistrate " shall " make, in consequence of the debtor's own notice that he desires to take the oath. Besides, the burden of proof is upon the debt- or, who has declared his desire to bring himself within the provisions of G. S. c. 124, § 21, or P. S. c. 162, § 39, which latter says that, " The magistrate, if sat- isfied upon the examination of the truth of the facts set forth in the oath to be taken by the defendant or debtor, and in the certificate provided for in the fol- lowing section, and if it appears to him that the de- fendant or debtor is entitled to his discharge under the provisions of this chapter, shall administer to him the following 26 STATUTES AND CASES. Oath foe the Relief op Poor Debtors. " I [Aere repeat the name'} do solemnly swear that I have not any estate, real or personal, to the amount of twenty dollars, except the estate, goods, and chattels which are by law exempt from being taken on execution, but not except- ing intoxicating liquors ; and that I have not any other estate now conveyed, concealed, or in any way disposed of, with the design to secure the same to my own use or to defraud my creditors. So help me God." The burden of proof was on the creditor at his ex parte hearing before the magistrate, to show the truth of the creditor's affidavit in order to obtain the mag- istrate's certificate preceding the arrest; but the function of the affidavit is fulfilled when the magis- trate issues his certificate upon it ; and now that the arrest has taken place, and the debtor has " initiated," in the words of Morton, J., these new proceedings for his own discharge, he invites the issue, under the said § 21 of G. S: c. 124, or § 39 of P. S. c. 162, whether the oath, if he is allowed to take it, will be true. The issue is not whether the creditor's affidavit is true. Tha.t question was passed upon at the ex parte hearing preceding the arrest. Thfe issue con- tains ,the questions whether the debtor can truth- fully take the oath above set forth, and whether the magistrate can truthfully make the certificate which is set forth by G. S. c. 124, § 22 (corre- sponding to P. S. c. 162, § 40) which latter sec- tion, 40, says that, " after administering the oath, the magistrate shall make a certificate thereof under his hand as follows : to wit, — PKOPEETT, FEATJD, ETC. 27 " S , ss. I hereby certify that A B , a poor prisoner arrested upon execution, (or on mesne process,) has caused E F , the creditor (or plaintiff) at whose suit he is arrested, to be notified according to law of his desire to take the benefit of the law for the relief of poor debtors; that in my opinion said A B has not any estate, real or personal, to the amount of twenty dollars, except the estate, goods, and chattels which are by law exempt from being taken on execution, but not ex- cepting intoxicating liquors ; and has not any other estate now conveyed, concealed, or in any way disposed of, with design to secure the same to his own use or defraud his creditors. And I have, after due examination of said A B , administered to him the oath for the relief of poor debtors. Witness my hand, this day of , in the year . A B (Magistrate)." And the issue also includes the general question, stated in the said § 21 of G. S. c. 124, corresponding to P. S. c. 162, § 89, whether " it appears to him " (the magistrate) " that the . . . debtor is entitled to his discharge under the provisions of this chap- ter." Hence it is clear that it is the debtor who " initiates " the proceedings which bring about the examination ; that it is the debtor who causes the notice of time and place to be issued by the magis- trate to the creditor ; that it is the debtor who will be benefited if the creditor fails to appear after due notice ; that it is the debtor who voluntarily subjects himself to the examination in order to get his dis- charge ; that it is the debtor whom the statute (G. S. 0. 124, § 19, corresponding to P. S. c. 162, § 38) says " the magistrate shall examine ; " and that the 28 STATUTES AND CASES. creditor is the party who is upon the defensive, and is allowed by the statute (G. S. c. 124, § 48, cor- responding to P. S. c. 162, § 68) to "attend the examination," if he will not lose the benefit of the arrest, and who, having attended, " may, upon such examination, propose to the . . . debtor any inter- rogatories pertinent to the inquiry." (G. S. c. 124, § 19, corresponding to P. S. c. 162, § 38.) And he may " pending the examination " file charges of fraud (P. S. c. 162, § 49). The debtor is in the position of a plaintiff, as is said in several of the decisions upon the poor debtor law, and the creditor is in the position of a defendant (48, 65). It is also clear that, if the debtor is examined at all, with reference to his being allowed to take the oath which he has applied to take, there is only one way in which he can be examined, and that is the way laid down by the mandatory § 19 of G. S. c. 124, corresponding to P. S. c. 162, § 38 ; to wit, " The magistrate shall examine him on oath concerning his estate and effects, the disposal thereof, and his ability to pay the debt or satisfy the cause of action for which he is arrested." If he be not examined upon these subjects, the magistrate cannot be " satisfied of the truth of the facts set forth in the oath to be taken by the . . . debtor, and in the certificate to be made by the magistrate." It is absurd to suppose that it can be proper for the magistrate to, issue a certificate stating that he has examined a man, and that in his opinion he has no property to the amount of twenty dollars not exempt from execution, and that he has no property fraudulently concealed from his creditors, when the man has not been examined upon PROPERTY, FRAUD, ETC. 29 these matters. Yet it is such a certificate which the debtor asks for when he applies to be allowed to take the oath for the relief of poor debtors, no matter what may have been the contents ,of the creditor's affidavit annexed to the execution upon which the arrest was made. Upon what ground, then, can the debtor object to an examination concerning his property ? 40. A second reason which, at the time of Frost's Case and before the passing of the Public Statutes, was urged against such an examination, is, that the question concerning the debtor's property and the disposal of it is res adjudicata in consequence of the finding of the magistrate set forth in the certifi- cate under the act of 1877, refusing to authorize the arrest for this reason, among others, that it does not appear that " the debtor has any estate or property of any kind to the amount of twenty dollars " (act of 1877, c. 250, § 3) not exempt from being taken on execution. This objection was made before the act of 1881, c. 263, § 1, incorporated in the present Public Statutes, c. 162, § 21, bj^ substituting " above " for " to," changed the question formerly at issue under the act of 1877, c. 250, § 3, to the question whether " the debtor has estate or property of any kind above the amount of twenty dollars " (P. S. c. 162, § 21). This change makes the test question upon the points of property when the creditor noti- fies the debtor to come in to be examined before an arrest, this : Whether the debtor has more than twenty dollars ; and, if so, what ? But the test question upon the point of property where the debtor after arrest applies to take the poor debtor's oath 30 STATUTES AND CASES. remains this : whether the debtor has as much as twenty dollars. In consequence of this recent change, and the fact that the General Statutes are still famil- iar, the question will be considered with reference to both the General Statutes and the Public Statutes as well as the act of 1877, c. 250, notwithstanding the fact that the change in the issue seems to ren- der the argument even more unnecessary than before. Nevertheless, in order to estimate the force of this objection, let us take one of the tests for determining whether a matter is res adjudicata or not, wliich was laid down by Shaw, C. J., in Bigelow v. Winsor, 1 Gray, 299 (302). The Chief Justice said : » To ascertain whether a past judgment is a bar to an- other suit, we are to consider, first, whether the subject-matter of legal controversy, which is proposed to be brought before any court for adjudication, has been drawn in question, and within 'the issue of a former judicial proceeding, which has terminated in a regular judgment on the merits, so that the whole question may have been determined by that adjudica- tion." Now compare "the whole question" which was determined by the magistrate under the act of 1877, c. 250, § 3 (P. S. c. 162, § 21, with "above " added), with "the whole question" which the debtor brings before the magistrate under G. S. c. 124, § 21 (P. S. c. 162, § 39). The issue under the act of 1877 is stated in the said § 3 as follows: "If it shall appear that the debtor has any estate or prop- erty of any kind to the amount of twenty dollars, not exempt from being taken on execution." (P. S. c. 162, § 21, changes this to ^'' above the amount of twenty dollars.") Either of these issues is much PROPERTY, FEATJD, ETC. 31 narrower than the issue under G. S. c. 124, § 21, -which is as follows : " If, upon the examination, the magistrate is satisfied of the truth of the facts set forth in the oath to be taken by the . . . debtor, and in the certificate to be made by the magistrate, and it appears to him that the . . . debtor is entitled to his discharge under the provisions of this chapter, the magistrate shall administer to him the following oath : " [Then follow the oath and the certificate, which have been above described as they are in P. S. c. 162, § 39.] This issue, in addition to the question concerning the present possession of property by the debtor may include a creditor's filed charges that the debtor has, in any way, fraudulently disposed of his property or is guilty of some other fraud named in .§ 17; besides the inevitable inquiry whether the debtor is entitled to his discharge under " this chap- ter," 124, General Statutes (P. S. c. 162, § 39). Let us consider this manifold issue in its separate parts : — The first part of the issue is the possession of prop- erty. The finding of the magistrate, under the act of 1877 (or P. S. c. 162, § 21), that it does not ap- pear that the debtor has any property " to the amount of twenty dollars," was in practice set forth in the magistrate's certificate refusing to grant a certificate for his arrest when that was the opinion of the magis- trate, but no such statement was called for by the act of 1877, nor is any such statement concerning an " excess " above twenty dollars called for by P.S. c.162, §§ 21, 24, nor does it make any difference whether a debtor is rich or poor if he appear and obey the magistrate as required by § 4 of that act, or P. S. c. 162, § 24. Nor does that 32 STATUTES AND CASES. act, or p. S. c. 162, § 24, require the magistrate to give or to make any certificate upon refusing to grant a certificate for arrest. Certificates of such refusal are given for tlie convenience of the parties, to show the decision and its date, and a simple statement of refusal, dated correctly, would suffice to serve the pur- pose. The point of the magistrate's final decision is the single fact that he refuses under § 4, 1877, or P. S. c, 162, § 24, to grant the certificate of arrest asked for under § 1, 1877, or P. S. c. 162, §§ 17, 18. The ques- tion before him, presented by the creditor's applica- tion, is, whether he will grant it or refuse it. Never- theless, §§ 2-4, 1877, or P. S. c. 162, §§ 20-24, require that, before he grants or refuses it, he must consider the examination and any other evidence concerning the debtor's property, and the conduct of the debtor under such orders as the magistrate gives with refer- ence to what is disclosed by the examination and any other evidence. Then, before he refuses to grant the creditor's application for a certificate for the debtor's arrest on the first charge of § 5, c. 124, G. S. or P. S. c. 162, § 17, he decides judicially upon both the ques- tion of property and the question of obedience. The reason of his refusal may be that the debtor, having been found to possess property, has obeyed the ma- gistrate and paid the debt ; or it may be that, it not having appeared that the debtor has any property, he has nevertheless obeyed the magistrate and is entitled to have the magistrate refuse the creditor's applica- tion. Whatever the reason of the refusal may be, it is the refusal to grant a certificate of arrest on that present charge and cause of action, and only that present charge and cause of action which is adjudged. PKOPERTY, FRAUD, ETC. 33 And that is res adjudicata only because § 4, 1877, or P. S. c. 162, § 24, makes it such. Nor does even § 4, 1877, or P. S. c. 162, § 24, allow the question of grant- ing such a certificate of arrest to remain res adjudicata after three years from the time the refusal is made. The makers of the act of 1877, P. S. c. 162, §§ 18-25,— incomplete as was their attempt at just legislation, — nevertheless seem to have perceived that, even if a magistrate should judicially decide to-day that a man has no property, the question whether he has property when to-morrow arrives will not be res adjudicata, but will be a new question, a question moreover upon which will be admissible not merely evidence concern- ing the events of the intervening night, but all com- petent evidence, including what may have been given in the examination whether he has property to-day, providing it is relevant to the new question whether he has property to-morrow. But under the act of 1877, or P. S. c. 162, §§ 18- 24, it is not necessary for the magistrate to form an " opinion " that the debtor " has not any " property in order to find that it does not " appear that " he has any. In this respect there is a wide difference between the evidence necessary to warrant the magis- trate's certificate which is required by G. S. c. 124, § 22, or P. S. c. 162, § 40, when he allows the debtor to take the poor debtor's oath, because, among other things recited by his certificate, in his " opinion " the debtor " has not any " property, &c., and the evidence necessary to warrant the magistrate's finding under the act of 1877, c. 250, § 3, or P. S. c. 162, § 21, that it does not " appear that the debtor has any estate or property of any kind," &c. Under P. S. c. 162, § 21, 34 STATUTES AND CASES. the magistrate, not being able to give any definite order to the debtor to produce, transfer, assign, or convey any specific " kind" of property, can give no order to which he can require obedience, and, there- fore, is obliged to refuse to grant a certificate for his arrest under § 4, 1877, or P. S. c. 162, § 24, because he has appeared, submitted to the examination, and obeyed all the orders which the magistrate had been able to give him. If the magistrate, distrusting the debtor's statement that he had no propertj', should order him to pay to the creditor a certain sum of money, the debtor might well ask the magistrate to specify in his order the particular " kind " of property which " appears " to the magistrate to be in the debt- or's possession. But if the magistrate should not wait for such objections, but should grant a certificate of arrest upon the ground that the debtor had dis- obeyed one of his " lawful orders and requirements," the debtor, if arrested upon such a certificate, would seem to have a good reason for a writ of habeas cor- pus^ because such order was not " lawful " under the act of 1877, or P. S. c. 162, unless the court should hold that the magistrate's order to pay a sum of money implied that the magistrate had judicially determined that sum of money to be in the debtor's possession. On the contrary, however, if a magis- trate refuses to administer the poor debtor's oath to a debtor under G. S. c. 124, § 21, or P. S. c. 162, § 39, and the debtor asks the reason, and the magistrate, although not required by statute to give his reasons, thinks it expedient to give a reason for the sake of justice, it will be a sufficient reason to say that in his " opinion " the debtor has property PEOPERTY, FRAUD, ETC. 35 to the amount of twenty dollars not exempt from be- ing taken in execution. And this " opinion," whether thus expressed or not, is by that G. S. c. 124, §§ 21, 22, or P. S. c. 162, §§ 39, 40, made sufficient. Hence it appears that within " the whole question " in the manifold issue of G. S. c. 124, § 21, or P. S. c. 162, § 39, is contained the " opinion " of the magistrate whether the debtor has or " has not " a certain amount of property ; while in the narrow issue of the act of 1877, c. 250, § 3, the magistrate has merely to find whether it " shall appear that the debtor has any estate or property of any kind to " a certain amount, or "above" a certain amount, in P. S. c. 162, § 21. In other words, a debtor who applies to take the poor debtor's oath has the burden of proving that he has not property, not exempt, to the amount of twenty dollars, but a creditor who applies for a cer- tificate of arrest upon the first charge of G. S. c. 124 § 5, since the act of 1877, has the burden of proving that the debtor has certain specific property of some definite kind to the amount of twenty dollars (in P. S. c. 162, § 21, it is " above the amount of twenty dollars," as above explained) before he can get a " lawful " order from a magistrate to have the debtor pay or transfer anything to him. A decision under the act of 1877 (or P. S. c. 162, § 21), that the cred- itor has not sustained his burden of proof by showing any particular kind of property to be now in the debtor's possession, can hardly cover "the whole question " contained in the burden resting upon the debtor by G. S. c. 124, § 21, or P. S. c. 162, § 39, of proving that he " has not " any property, not exempt, up to a certain amount at a subsequent time, and of 36 STATUTES AND CASES. proving it so that the magistrate becomes of tha,t "opinion." (G. S. c. 124, § 22, or P. S. c. 162, §40.) If anj"^ further argument is necessary to show that a decision that it does not appear that a man has property to-day, does not render the question whether he has property to-morrow res adjudicata, one mAj be found in § 22 itself of the c. 124, G. S., or P. S. c. 162, § 40, which, after requiring the certificate of the magistrate's " opinion," that the debtor " has not " any property, etc., to-day, provides that, notwith- standing the arrest, imprisonment, and discharge of the debtor's body, " the judgment shall remain in full force against his goods and estate." 41. Another test of res adjudicata, laid down by Shaw, C. J., in Bigelow v. Winsor, 1 Gray, 299 (302), is as follows : " Whether the former adjudication was had before a court of .competent jurisdiction, to hear and decide on the whole matter of controversj', em- braced in the subsequent suit." This test is especially applicable to the discussion of the rest of the issue of G. S. c. 124, § 21, or P. S. c. 162, § 39. The second part (437) may be raised by charges of fraud. The certificate of refusal to grant a certificate authorizing an arrest, which has been described above as having been issued under the act of 1877, P. S. c. 162, §§ 18-24, does not state any determination by the magistrate concerning any fraud on the debtor's part, and it is well known, not only that no such statement is required of the magistrate by the act of 1877, P. S. c. 162, §§ 18-24, but that none is made in practice. Indeed, it seems that the jurisdiction of the magistrate, under the act of 1877, P. S. c. 162, PEOPEKTY, FEADD, ETC. 37 §§ 18-24, is SO limited as to exclude the power to adjudicate upon any fraudulent acts of the debtor as such, or in any way except so far as such acts, if they appear in the evidence, tend to the decision of the issue in 1877, c. 250, § 3, whether or not " the debtor has any estate or property of any kind to the amount of twenty dollars not exempt from being taken on execution." Q'- Above the amount of twenty dollars," P. S. c. 162, § 21.) For the said section 4, c. 250, 1877, or P. S. c. 162, § 24, provides that, " if the debtor shall appear as directed by the magistrate and obey all lawful orders and requirements made by the magistrate, the magistrate shall not grant a certifi- cate authorizing an arrest on the aforesaid appli- cation." Hence fraud, as fraud, on the debtor's part against his creditor, seems to be irrelevant in the examination under the act of 1877, P. S. c. 162, § 21, for the only question as to property is whether the debtor now has enough to justify his arrest since that new act. If the debtor has fraudulently dis- posed of his property, either before or during his examination, and it does not appear that he has any to the amount of twenty dollars ("above " that amount, P. S. c. 162, § 21), when the magistrate passes upon the question of property, the magistrate has simply to find the fact that it does not appear that he has any to that amouht (" above " it, P. S. c. 162, § 21), without regard to the fraudulent manner in which it may have appeared that the debtor had disposed of his property. And any statement by the magistrate, in a certificate or otherwise, concerning the manner of the debtor's disposal of his property,' howsoever fraudulent, would be judicial merely to the extent of 38 STATUTES AND CASES. showing that the magistrate found as a fact that the debtor had not any property, because he had disposed of it. The magistrate's expression of his opinion that such disposal was fraudulent would be merely extra-judicial upon the point of fraud as fraud, and consequently furnishes no legal ground for alleging that that part of the manifold issue stated in G. S. 0. 124, § 21, P. S. c. 162, § 39, is res adjudioata. An extra-judicial statement cannot make a matter res adjudioata. Even if the magistrate finds, in an ex- amination under the act of 1877, P. S. c. 162, §§ 20, 21, that the debtor has property which is fraudu- lently concealed, so that the debtor's possession of property is adjudged to be a fact, and if, in con- sequence of such previous concealment, it becomes impossible even for the debtor to produce any prop- erty or to make any transfer, assignment, or convey- ance of it which shall be of any benefit to the creditor, nevertheless, if the debtor goes through the forms prescribed by § 3, 1877, c. 250, or P. S. c. 162, §§ 21-24, and thereby brings himself within the pro- vision of § 4, 1877, c. 250 ; or P. S. c. 162, § 24, for- bidding the magistrate to grant a certificate for his arrest, if he " obeys all lawful orders and require- ments," the magistrate must refuse to grant the cer- tificate for the arrest of the debtor, whom he believes to be fraudulent ; and then, by the said § 4, 1877, 0. 250, or P. S. c. 162, § 24, " the judgment creditor shall not, for the period of three years thereafter, be authorized to make application for the arrest or ex- amination of such debtor upon the same charge and cause of action." That is to say, the act of 1877, while attempting to deal justly with the debtor, fails PKOPERTi', FRAUD, ETC. 39 to preserve justice for the creditor. The creditor has had to pay the magistrate's fees for a notice to the debtor, and for an examination of the debtor ; and it has appeared that the debtor has fraudulently con- cealed his property, and that he cannot produce or assign it so as to benefit the creditor, and yet, if the debtor obeys the magistrate's " lawful orders and requirements," the magistrate must refuse to grant a certificate authorizing his arrest, although the same magistrate, upon the same evidence, if acting under G. S. 124, § 21, P. S. c. 162, § 39, would refuse the poor debtor's oath to the same debtor if the cred- itor had filed and proved a charge of fraud (§ 49) that he had fraudulently disposed of his property for his own use aud against his creditors. Then, upon the very same evidence of fraud which has incidentally appeared during the examination under the act of 1877, the creditor, if he finds that that evidence includes facts which will support an affi- davit containing any of the charges, 2, 3, 4, or 5, of G. S. c. 124, § 5, P. S. c. 162, § 17, may apply to the same magistrate and get a certificate, after which he can cause the debtor to be arrested for the very reason which was irrelevant, and therefore is not res adjudicata, concerning the question of a few minutes before, namely, whether the magistrate should grant a certificate of arrest upon the first charge of G. S. c. 124, § 5, P. S. c. 162, § 17. Immediately upon this arrest the debtor can apply to the same magistrate (if he is " taken " before him by the arresting officer,' P. S. c. 162, §§ 27, 31, G. S. c. 124, §§ 9, 12) to be allowed to take the oath for the relief of poor debtors, and now, when the 40 STATUTES AND CASES. creditor, having been notified by the magistrate, attends the examination, and the magistrate proceeds to examine the debtor, as G. S. 124, § 19, P. S. c. 162, § 88, says that he " shall " do, it is absurd for the debtor to claim that the question of a fraudulent dis- posal of his property became res adjudicata by the magistrate's recent decision under the act of 1877, P. S. c. 162, §§ 18-24, to which the question of fraud, as such, was irrelevant, and in which any expression of opinion by the magistrate, if he made any, con- cerning fraud as such, was extra-judicial. It is in vain to urge that the precediug examination, under the act of 1877, c. 250, § 2, P: S. c. 162, § 20, was concerning " the disposal " of the debtor's property, and that finding how it has been disposed of involves decision of the question whether such disposal was fraudulent. Because, even if it appears incidentally that " the disposal " of it was fraudulent, that fact does not necessarily make it " appear that the debtor has any estate or property " § 3, c. 250, 1877, or P. S. c. 162, § 21, and does not prevent the debtor from obeying all the magistrate's " lawful orders and requirements" § 4, c. 250, 1877, or P. S. c. 162, § 24, and consequently, if it does not " appear that the debtor has any estate or property," and if he obeys the magistrate's " lawful demands and require- ments," the magistrate must refuse to grant a certifi- cate authorizing his arrest, and the magistrate, in deciding whether to grant or to refuse such a cer- tificate, has no more jurisdiction to decide the ques- tion of the debtor's fraud as such than he has to decide the question of the debtor's right to a dis- charge in insolvency, or any other matter about PEOPERTY, PKAUD, ETC. 41 ■which evidence may have appeared incidentally in the course of the examination, but which the act of 1877, c. 250, P. S. c/162, §§ 18-24, does not author- ize the magistrate to adjudicate upon when he refuses to grant a certificate authorizing the debtor's arrest under the first charge of G. S. c. 124, § 5, P. S. c. 162, § 17. Charges of fraud could not be " filed," § 49. It seems then, to be clear that that part of the issue under G. S. c. 124, § 21, P. S. c. 162, § 39, ■which concerns " filed " charges of fraud, has not become res adjudicata by means of the magistrate's decision under the act of 1877, c. 250, § 4, P. S. c. 162, § 24, to refuse a certificate of arrest. This con- clusion ■will seem to be even clearer, perhaps, ■when it is remembered' that if the magistrate, after an exam- ination under the act of 1877, c. 250, §§ 2, 3, P. S. c. 162, §§ 20, 21, had granted a certificate of arrest, con- taining in addition to the usual recitals the unusual statement that, in his opinion, the debtor had dis- posed of his property to secure it to his own use and defraud his creditors ; and if the debtor were then arrested upon another charge and then applied to take the oath for the relief of poor debtors, the debtor could not be allowed to take that oath or even to be examined for it, if the question of his fraud had become res adjudicata by the decision of the magistrate granting the certificate of arrest after an examination under the act of 1877, c. 250, §§ 2, 3, P. S. c. 162, §§ 20, 21, concerning "the disposal" of his property. Indeed, according to the argument of such as think that the presence of the word " dis- posal " in the second section of the act of 1877, 0. 250, P. S. c. 162, § 20, is a ground for holding 42 STATUTES AND CASES. that when a magistrate has refused under the fourth section of the act of 1877, c. 250, P. S. c. 162, § 24, to grant a certificate of arrest in the common manner, and without adding any unusual recital, and the debtor is afterward arrested upon one of the charges num- bered 2, 3, 4, or 5, of § 5, c. 124, G. S. ; P. S. c. 162, § 17, and applies to take the oath for the relief of poor debtors, he cannot be examined even concerning any fraudulent " disposal " of his property, because they say that by a decision after an examination under tlie act of 1877, c. 250, § 2, both the question of property and the question of any fraudulent " disposal " of it became res adjudicata; according to this loose argu- ment it would follow that a debtor so arrested could not be examined at all, for there would be nothing for him to be examined upon ; but this conclusion would be contrary to the construction of the act of 1877, c. 250, by Morton, J., in Frost's Case, 127 Mass. 550, already cited, when he says, in speaking of the fourth section of that act : " The statute was not intended to forbid an examination within three 3'ears upon other charges in the course of proceedings initiated by the debtor for the purpose of taking the poor debtor's oath after an arrest." 127 Mass. p. 653. Nay, moreover, this far-fetched argument, with its straining of the word " disposal " in the act of 1877, c. 250, § 2, P. S. c. 162, § 20, logically leads also to the conclusion that the questions about the divers modes of the debtor's " disposal " of his property, which are contained in the second, third, and fourth charges of G. S. e. 124, § 5, P. S. c. 162, § 17, are each of them also res adjudicata after an examination about the " disposal " under the act of 1877, c. 250, PEOPBETY, PEAUD, ETC. 43 § 2, P. S. c. 162, § 20, and that consequently, after a magistrate's refusal under the act of 1877, c. 250, § 4, P. S. c. 162, § 20, to grant a certificate of arrest, the debtor cannot be arrested upon either of those charges (2, 3, or 4 of G. S. c. 124, § 5, P. S. c. 162, § 17), because, even at the ex parte hearing upon any of these charges, such questions must be held to have become res adjudicata by the decision under the act of 1877, P. S. c. 162, §§ 20, 21, 24, and the magistrate is not at liberty to consider whether an affidavit set- ting forth any of such charges is true or not. But this conclusion, likewise, is in direct conflict with the very point of the decision in Frost's Case, cited above, which sustained an arrest upon the second charge of G. S. c. 124, § 5, declaring that the debtor had fraud- ulently disposed of his property, after an examination and refusal of a certificate of arrest under the act of 1877, c. 250, §§ 2, 3, and 4. Now, therefore, since Frost's Case has decided that, after an examination under the act of 1877, c. 250, §§ 2 and 3, and a refusal of a certificate of arrest under § 4 thereof, the debtor may be arrested under the second charge of G. S. c. 124, § 5 ; it has decided also that the question of the debtor's fraudu- lent " disposal " of his property was not made res ad- judicata by the magistrate's refusal under the act of 1877, for since, notwithstanding that refusal in the previous proceedings, the arrest was legal, the pre- liminary ex parte hearing, adjudication, and the cer- tificate of the magistrate necessary to the arrest were also legal, and that hearing, adjudication and certifi- cate were upon the sole question of the debtor's fraudulent " disposal " of his property. 44 STATUTES AND CASES. 42. Nor is the principle of Frost's Case confined to arrests under the second charge of G. S. c. 124, § 5, P. S. c. 162, § 17. It is expressly applied to the other charges after the first charge by the words, already quoted, of the opinion of Morton, J., say- ing: " The statute was not intended to forbid an examination within three years upon other charges, in the course of proceedings initiated by the debtor for the purpose of taking the poor debtor's oath after an arrest." 127 Mass. 553. These words of Morton, J., take it for granted that, the arrest having been legal, the debtor can proceed toward taking the poor debtor's oath, just as if the act of 1877 had never been passed, or pro- ceeded under. These remarks concerning the irrelevancy of fraud as fraud, in the examination under 1877, c. 250, §§ 2, 3, are equally applicable to P. S. c. 162, §§ 20, 21, and the examination held under them, which is the same as that held under the act of 1877, except that the issue has been changed by substituting " above " for " to " before the words " the amount of twenty dollars " in § 21. 43. The third part of the issue is the right to a discharge. In order to know, as above required by Shaw, C. J., " the whole question " set forth as an issue by G. S. c. 124, § 21, P. S. c. 162, § 39, the magis- trate is required thereby also to consider whether " it appears to him that the . . . debtor is entitled to his discharge under the provisions of this chapter." Since it will probably not be seriously argued that a debtor who has applied for such a discharge under that chapter is entitled to it, because his right thereto PROPERTY, FRAUD, ETC. 45 is res adjudicata under the act of 1877 (P. S. c. 162, §§ 20, 21, 24), it is not worth while to indulge in vain imagination upon this branch of the matter. If the proceedings under the act of 1877 prevent his being held under G. S. c. 124, § 5, then it is illegal to ar- rest him under G. S. c. 124, § 5, and the proper course for a debtor who wished to be discharged frona an arrest under one of the last five charges of G. S. c. 124, § 5, upon the ground that the magistrate's refusal under act of 1877, c. 250, § 4, to grant a cer- tificate for his arrest, settled for three years " the whole question " to be raised by an examination for the poor debtor's oath, would be to test the legality of his arrest by praying for a writ of habeas corpus. This was done by the debtor in Frost's Case, and his arrest was held to be legal. The learned counsel for the debtor in that case perceived and admitted in their brief that, if the debtor applied to take the oath, the magistrate would be obliged, by the express requisition of the statute, to examine him according to G. S. c. 124, § 19, and consequently they did not make the mistake of applying for an adjudication of what they argued was already res adjudicata, but chose the logical course of contesting the legality of the arrest. The decision that the arrest was legal, notwithstanding the previous proceedings under the act of 1877, renders it absurd to discuss whether those proceedings entitled the debtor to a discharge from the arrest imder G. S. c. 124, §§ 19, 21, 22. The arrest being legal in such a case, then after- ward, when the debtor applies to take the poor debt- or's oath, the magistrate gets jurisdiction, and, if the subsequent proceedings are legal, may discharge the 46 STATUTES AND CASES. debtor or not. But, if the matter had been res adju- dioata, the arrest would have been illegal, and the magistrate would not even have authority to grant a discharge if it were asked for. In short, if a magis- trate has jurisdiction to do anything when he enter- tains an application to take the poof debtor's oath, he can do everything that is laid down in G. S. c. 124, §§ 19-22, 31 ; P. S. c. 162, §§ 38-40, 49. If in any case where both parties appear and demand their full rights, he cannot do everything there laid down, it is because he has no jurisdiction to entertain the appli- cation to take the poor debtor's oath in that case. So much for the issue of G. S. c. 124, §§ 21, 22, P. S. c. 162, §§ 39, 40. 44. A third objection to examining, concerning his property, a debtor arrested upon one of the last five charges of G. S. c. 124, § 5, P. S. c. 162, § 17, whether his arrest has been preceded by a decision or any proceedings under the act of 1877, P. S. c. 162, §§ 18-24, or not, is said to be that G. S. c. 124, § 31, P. S. c. 162, § 49, provides that when either of those last five charges " is made as therein provided, . . . the charges shall be considered in the nature of a suit at law, to which the . . . debtor may plead that he is guilt}'- or not guilty, and the magistrate may thereupon hear and determine the same." It is said that, since " the charges shall be considered in the nature of a suit at law," according to the words of this section, the creditor must proceed with this kind of a suit, which he has brought, and the debtor has a right to have the charge of fraud tried, and, if he be found not guilty, he is entitled to his discharge, and should have the poor debtor's oath administered to PKOPERTY, FEAUD, ETC. 47 him. And, it is added, if the creditor does not pro- ceed with his so-called suit, by filing specifications under the charge or charges upon which the arrest was made, and does not produce evidence to sustain them, the debtor should be discharged without any examinatioh, as if the creditor had not appeared. This objection is very weak. It ignores tlie fact that the only way by which a magistrate can get a jurisdiction which will enable him to try one of these" charges of fraud is by means of the debtor's own ap- plication to take the poor debtor's oath, and that the primary object of that application by the debtor is that, he may be discharged from arrest, and that the only mode of discharge provided by G. S. c. 124, and the part of P. S. c. 162 corresponding to it, when the debtor makes such an application, and the cred- itor appears in defence of his rights, is the mode of G. S. c. 124, §§ 19-22, 31 ; or P. S. c. 162, §§ 38-40, 49, which require both an examination concerning the debtor's property and his disposal of it, and a certifi- cate by the magistrate that, in his " opinion," the debtor " has not " any property above a certain amount. It ignores, also, the evident fact that G. S. c. 124, § 31, or P. S. c. 162, § 49, is not mandatory, but permissive, with respect to a trial of the charges of fraud. This section, G. S. c. 124, § 31, or P. S. c. 162, § 49, says the debtor may "plead," and the magistrate " may thereupon hear and determine," but it does not say that the creditor shall proceed to get the charges of fraud tried. It says that " the charges shall be considered in the nature of a suit at law;" but to consider them in that way is to consider that, as in other suits, the plaintiff may do as he 48 STATUTES AND CASES. likes, and enter his writ and file his declaration or not ; so, likewise, in a proceeding of this nature, the creditor may or may not, as he pleases, during the examination of the debtor of which he has been noti- fied by the magistrate, upon the debtor's application, and which the creditor attends to prevent the debtor from being discharged without an examination, file with the magistrate the charges of fraud and specifi- cations of them, in order to have them tried. But here is another peculiarity of this law. The debtor, as has been already said, is in the position of a plain- tiff in applying for the oath ; and the creditor is in the position of a defendant. Therefore, when he files a charge of fraud at the examination, it is rather like a declaration in set-off filed by a defendant. It is " by way of answer " (48, 65, 76, 77). But the plain- tiff, whom the debtor here represents, must prove his claim or fail to get the judgment he originally asks for. There is no more reason for requiring the cred- itor who got the debtor arrested upon a certificate of a charge of fraud to go on and proceed with a trial of that charge incidental to the debtor's application to take the poor debtor's oath, than there is for requiring a defendant, who happens to have a claim against a plaintiff, to file a declaration in set-off instead of confining himself to his defence in the original action. The creditor's charge of fraud was passed upon at the ex parte hearing by the magistrate, and was made, not for the purpose of being tried in subsequent pro- ceedings, but for the immediate object of accomplish- ing the arrest of the debtor. That end having been accomplished, the creditor ceases to act upon the aggressive, and — mark this fact — he could not have PKOPERTY, FUAUD, ETC. 49 the charge of fraud against the debtor tried if he wished to do so, whether the debtor were UDwilling or willing, unless the debtor applied to take the poor debtor's oath, and thereby took the attitude of a plain- tiff and put the creditor into the position of a defend- ant. It is a curious view of " the nature of a suit at law " to suppose that a creditor who has not the right to a trial of his charge of fraud against a debtor until the debtor, acting against him, applies to take the poor debtor's oath, should then be obliged to proceed with a trial of that charge, or suffer the debtor to be discharged without an examination into the debtor's own claim of having no property. This seems to be a reductio ad absurdum. 45. The meaning of G. S. e. 124, § 5, and P. S. c. 162, § 17, as to the last five charges of those respective sections, appears to be that the legislature is willing that a creditor should not be restrained from arresting a debtor under the common law, pro- viding that, at an ex parte hearing, he can satisfy a magistrate that there is reasonable cause to believe certain charges set forth in brief in an affidavit ; and that the legislature does not think it worth while to allow either the creditor or the debtor to have a trial of such charges without further proceedings, because the object of the process, as many decisions show, is not criminal, — before the sentence at least, — but civil, and is merely to enforce the payment of the debt. This, the legislature thinks, is enforced better by the debtor's lying in jail, or being bound by a recog- nizance, than by a trial of a charge against him, upon which he might waste money that should better be spent in paying the debt. But if the debtor does not 4 50 STATUTES AND CASES. pay the debt, since it might be both useless and cruel to keep him in jail or under a recognizance, then, in the opinion of the legislature, it is best to allow the debtor to ask a magistrate to make up his mind upon this question by an examination concerning his prop- erty and his disposal of it, and, if he prove himself to have no propertj' at all, he may be allowed to take an oath to that effect and be discharged. But if charges of fraud are filed and proved about his manner of disposing of his property, he may not be discharged. All this investigation is to be done under the application of the debtor himself by the magistrate who receives the application, the creditor having the right "by way of answer" (48, 65) to file the charges of fraud. This means that, now that the debtor has himself opened the matter anew, and proposes to get free if he can, the creditor approaches a criminal process when he proceeds to specify before the magistrate what frauds he charges the debtor with, and to have them tried with a view more strenuously to enforce, by the danger of future imprisonment under sentence, the payment 'of the debt pending the debtor's attempt to get free from the consequences of his, arrest. But if the cred- itor does not choose to make use of this additional means of bringing the debtor to terms, the legisla- ture does not lay upon him the burden of doing so. He may file or not file, may prosecute or abandon when filed, any charge of fraud allowed by the statute. But when the creditor attends, the debtor must inva- riably prove that he has not property, to the amount of twenty dollars, not exempt. But if the creditor is either so hopeless or so negligent as to omit this PEOPEETT, FBAUD, ETC. 51 opportunity to enforce his claim, and does not appear in answer to a notice from the magistrate, the legis- lature is indifferent, and allows the debtor to be discharged without any examination whatever. In brief, G. S. c. 124 in the language of Morton, J., in Dennis's Case, 110 Mass. 18 (20), "was designed for the benefit of honest debtors," and " to punish fraud- ulent debtors." But it would punish the creditor for his misfortunes if it provided that, unless he tried to get a debtor sentenced to jail or the house of cor- rection, whom he had got arrested because he had reason to believe him guilty of fraud, the magistrate should discharge the debtor without any examination, when the creditor attended to prove property. The act of 1877, c. 250, — and this is true now of P. S. c. 162, §§ 18-25 inclusive, — on the other hand, was evidently intended merely for the benefit of honest debtors ; for, as has been shown above, the question of fraud, as such, is irrelevant in the exami- nation under that act concerning property and the disposal of it. But it has also appeared that in prac- tice the act of 1877, and likewise P. S. c. 162, §§ 18- 25, benefits fraudulent debtors also, by delaying the creditor and putting him to the expense of proceed- ings under it, and of the subsequent proceedings under G. S. c. 124, P. S. c. 162, §§ 17, 38, 39, often with the same evidence throughout (417). It would be a stranger oversight than any which has yet been discovered in the making of the act of 1877, if it should be found to be the law that a magis- trate, who had certified, under G. S. c. 124, § 5, or P. S. c. 162, § 17, his satisfaction that there was reasonable cause to believe one or more of the last five 52 STATUTES AND CASES. charges in an affidavit for a debtor's arrest, should have to stultify himself by discharging the debtor without -examination upon his application to take the poor debtor's oath, on the ground that the proceed- ings under the act of 1877, or P. S. c. 162, §§ 20, 21, rendered the question of property and its disposal res adjudicata with respect to the examination, in spite of the fact that Frost's Case, as above shown, by implication decided that this question had not been made res adjudicata with respect to the ex parte hear- ing on the affidavit ; or should be obliged equally to stultify himself by administering the oath for the relief of poor, debtors, and certifying that, in his opinion, the person who took it was not worth twenty dollars, "now," not exempt from execution, without an examination concerning his property, even if no charge of fraud were filed. If this argument was sound in respect to the question of property, and res adjudicata before the act of 1877, c. 250, § 3, was amended by the act of 1881, c. 263, •§ 1, by the substitution of "above" for "to" imme- diately before the words, " the amount of twenty dollars," then a fortiori it is good since the act of 1881, and the incorporation of it in P. S. c. 162, § 21. Note. — The gist of this whole chapter may be stated in a few words to those who are familiar with the subject. The point is that an examination and a discharge of a judgment debtor before arrest upon execution may mean either that the creditor did not appear, or that, the creditor having proved that the debtor "has " property worth more than twenty dollars, not exempt, the debtor consequently obeyed an order of the magistrate concerning the "excess" (P. S. c. 162, § 21), or that the creditor failed to prove such " excess," and the debtor was not disobedient (P. S. c. 162, § 24). Now in none of these cases need the magistrate be convinced that the debtor has not such "excess." The PEOPEETY, FEAUD, ETC. 63 magistrate merely orders the debtor to give the creditor so much of any " excess " proved (417) as the creditor has a right to under the judgment and execution. Whether the debtor has committed all or any of the frauds mentioned in P. S. c. 162, § 17, is irrelevant, except so far as they may tend to prove pres- ent property in the debtor (417) or disobedience to a legal order of the magistrate. No charge of fraud can be filed for trial on an examination before arrest (P. S. c. 162, § 49). The debtor cannot be tried for fraud before he has applied to take the poor debtor's oath and charges of fraud have been filed " by way of answer " (48). Consequently when a creditor after an exami- nation and a discharge of a debtor before arrest makes ex parte an affidavit of a charge of fraud under P. S. c. 162, § 17, and thereupon the debtor is arrested and applies to take the poor debtor's oath, the preceding examination and discharge are irrelevant because the issue is different (P. S. c. 162, §§ 39, 40) even when no charge of fraud is filed. In order to be admitted to take the oath the debtor must at least and invariably prove that he "now " has not twenty dollars worth of property, not exempt, belonging to him, at law or in equity. The question always is, " Has " he or " has " he not that much ? If the creditor does not file and prove a charge of fraud, it is suflicient for the debtor to prove that he " has '' not that much property. But if the creditor files and proves a charge of fraud, the debtor is not "entitled to his discharge" (P. S. c. 162, § 39), even if he -'has" not any property "now" of any kind (422, 423, 431). 64 STATUTES AND OASES. CHARGES OF FRAUD BEFORE ARREST UPON EXECUTION, AND AFTER ARREST UPON MESNE PROCESS OR EXECUTION. 46. The theory as developed in the cases and the working in practice of P. S. c. 162, §§ 17, 49-52, providing for charges of fraud, make the most pe- culiar and mixed features of the poor debtor law. The point which is frequently overlooked by those not familiar with the law is, that the affidavit making one or more of the charges of fraud under § 17, clauses 2, 3, 4, 5, 6, is merely a preliminary privilege of the creditor to remove the statutory restraints from the power of arrest given by the writ. It has nothing whatever to do with the creditor's course after tiie arrest. It may be sworn merely to make the arrest legally possible. It may also be drawn, and is in practice properly drawn, in the general words of the statute, § 17, omitting the alternative form " or," without any further specifications than are there pre- scribed. The intention of the statute is that, even if there is not good reason for the creditor to believe that the debtor has property, and to make the affida- vit of property under the first clause ; nevertheless, if he has good reason to believe, and to make affidavit of, any of the charges of fraud, the arrest will be permitted according to the writ of execution. The debtor, when arrested upon an execution bearing an affidavit of a charge of fraud, is in precisely the same CHAEGES OF FKAUD. 55 position, with precisely the same rights, as a debtor arrested upon an execution bearing an affidavit of property under the first clause of § 1 7. The only dif- ference for the creditor is that if the charge of fraud in his afi&davit is sufficiently specific, he will not be obliged to file specifications if he asks for a trial on it when the debtor applies to take the poor debtor's oath. After the debtor's application to the magistrate to take the oath, and all the preliminaries necessary to give the magistrate jurisdiction to conduct the exam- ination, then the creditor has the second privilege afforded him by the sections concerning the charges of fraud. He can proceed under § 49, as is more fully described in the chapters on Practice. This pro- ceeding is in the nature of " an answer," as the decisions say, to the application of the debtor or the defendant, since after an arrest and an application to take the poor debtor's oath, both are subject to have charges of fraud filed against them by the creditor, although the affidavit of a charge of fraud before arrest can only be made against judgment debtors. This fact illustrates the distinct nature of the steps which the creditor takes by making charges of fraud before an arrest upon execution, and by making such charges after an arrest has taken place upon either mesne process or execution, and has been followed by an application by the debtor himself to take the poor debtor's oath. The nature of the trial is peculiar; for its beginning is-in a civil process, with the possibility of a criminal sentence at the end of it. 66 STATUTES AND CASES. Mixed Civil and Criminal Nature of the Pro- ceedings. 47. Appeal. — Motion in Arrest of Judgment. — The provision of the Practice Act, St. 1851, c. 233, St. 1852, c. 312 (corresponding to P. S. c. 167, § 82), limiting motions in arrest of judgment, was held not to applj"^ to a motion in arrest of judgment on appeal after sentence of the court upon charges of fraud. The ground was stated as follows (Metcalf, J.) : " Such sentence is not one of the incidents of a civil action, but of a proceeding for the punishment of a crime or offence," and therefore the Declaration of Rights and Rev. Sts. c. 98, § 28, were referred to as requiring full descriptions of the charges of fraud.^ But in the subsequent case of Parker v. Page, 4 Gray, 533 (1855), Bigelow, J., having this case of Chamber- lain V. Hoogs in mind, said of such a sentence : " That, certainly, is an incident of a criminal pro- ceeding. But it is also true that in such case the civil proceeding commenced by the debtor is thereby terminated. In its results, therefore, it partakes quite as much of a civil as a criminal proceeding, while in all other respects it is exclusively a civil pro- ceeding." He then-went on to sa}' that Chamberlain V. Hoogs went no further than to decide the point concerning the Practice Act above stated. In Cham- berlain V. Hoogs the motion in arrest of judgment was allowed even after verdict, because no punishable act was charged by the defective charges of fraud, which were an attempt to bring the debtor under the fourth 1 Chamberlain v. Hoogs, 1 Gray, 172 (1854), Motion for Ar- rest of Judgment on Appeal. CHARGES OF FEAtTD. 57 clause of Rev. St. c. 98, § 31, that he contracted the debt with an intention not to pay the same. The law remains so under P. S. c. 162, §§ 17, 49-52, and c. 167, §82. 48. Report after Verdict to Supreme Court. — Under G. S. c. 115, § 6, questions of law arising at the trial in the Superior Court could be reported after verdict for determination by the Supreme Judicial Court. This was upon the ground stated in several cases that the charges of fraud are " by way of answer " in civil proceedings begun by the debtor.^ The same principle is applicable to P. S. c. 153, § 6. 49. Order of Proceeding. — It is not determined, either by the statutes or the points decided in the cases, whether, when charges of fraud are filed before the examination for the poor debtor's oath has begun, and the plaintiff or creditor expresses his wish to have a trial upon them, the magistrate should require the defendant or debtor to plead and be tried upon them before the examination for the poor debtor's oath, or not, or whether the order is within his discretion. But since a finding of guilty of certain charges of fraud, the second, for instance, might prevent the oath, it would seem to be more expeditious to have the trial first. But even if the debtor be found guilty of a charge of fraud, he may, if he has no property, wish to be examined for the poor debtor's oath, in order to have the magistrate's judgment upon the question of property, in order to have that res adjudieata, since the magistrate's judgment is final upon that point (76, 77), notwithstanding the right of appeal on 1 Morse v. Dayton, 125 Mass. 47 (1878), Report after Appeal and Verdict. 58 STATUTES AND CASES. charges of fraud. The convenient way is to have the question of fraud settled first by a trial upon the charge of fraud, and then, if the debtor wishes to be examined for the oath upon the question of property, to confine the examination, as much as possible, to the question of propertj^, allowing the evidence of fraud on the trial to go into the examination. This seems to have been intimated by the court (Soule, J.) as follows : '■'■ If it would have been more regular for the magistrate to require a plea to the , charges of fraud, and to make a finding upon them before ad- ministering the oath, the irregularity was one for which the debtor was not responsible." Upon a creditor's default after filing charges of fraud, the debtor was discharged upon taking the oath.^ If the charges of fraud are filed after the examination has begun, the same reason of convenience would seem to suggest a suspension of the examination until after a trial upon the charges. But it is evident from the above case that neither party can be prejudiced by the order allowed by the magistrate within his discretion, and the order of these proceedings seems to be within that discretion. Although the debtor may have been arrested on a charge of fraud, he is not tried upon it unless, after the debtor has applied to take the poor debtor's oath, the creditor demands a trial and files specifications when they are necessary. The evidence of the fraud, if any be given at the examination for the poor debtor's oath, may show that the debtor is not entitled to take the oath which he applies to take, and thereby begins the 1 O'Connell V. Hovey, 126 Mass. 310 (1879), Contract on Eecognizance. Oath then irregular, 77 note, 427. CHARGES Oe FEAUD. 59 proceedings; during which the creditor may either file charges of fraud and have a trial, with a view to sentence, or merely test the debtor's right to take the oath. The fact that the creditor has had the debtor arrested, as the common phrase is, " upon a charge of fraud," is sometimes supposed, by persons not familiar with this law, to be a reason why the magistrate should insist upon the creditor's proceeding to have the debtor tried upon it. But this superficial view arises from the interesting result of the poor debtor statutes in leading even lawyers to forget that the arrest is by authority of the writ, apd that the so- called " arrest upon a charge of fraud " is merely an arrest upon the writ after the creditor has proved ex parte, to the satisfaction of a magistrate, that he believes, and has good reason to believe, the charge of fraud made in his affidavit. After that, upon the issue of the magistrate's certificate, the statutes no longer protect the debtor by restraining the power of arrest. But as soon as the creditor's rights have been protected by the arrest of the debtor the statutes again protect the debtor from commitment to jail by his rights to recognize, and furnish him an opportu- nity to apply to have his means of satisfying the creditor tested by an examination of the question whether he is poor enough and honest enough to jus- tify the magistrate in administering to him the oath for the relief of poor debtors. His application to do this has nothing to do with the charge of fraud. A trial upon that is another step and a privilege of the creditor's in addition to the privilege of making an affidavit of it before the arrest in order to remove the preliminary restraint of the statute, and to allow the authority of the writ to work. 60 STATUTES AND CASES. 50. The steps are as follows : The writ of execution commands the arrest in favor of the creditor; the stat- ute restrains the exercise of this authority in favor of the debtor; the creditor may satisfy the statute by affidavit, and the magistrate's certificate is issued, and the debtor is arrested in favor of the creditor ; the statute requires the debtor to'be taken before a mag- istrate for his own advantage, and gives him an op- portunity to recognize and to apply for examination, with a view to his possible release and discharge ; the statute requires a notice of the examination to be served for the .protection of the creditor ; the statute and the cases require the magistrate and both parties to attend at a certain time and place, to protect both parties and to despatch the business ; the debtor, hav- ing applied to be examined for his own advantage, is examined with reference to the statute protecting both parties; and either has the oath administered to him, and is discharged because he proved himself to be poor enough and honest enough to be protected even against a bona fide creditor, or is refused the oath be- cause he failed to give such proof and is committed upon the writ, which is shown now by the certificate of refusal not to be restrained in its authority. All this alternation, first for the creditor and then for the debtor, may take place without any trial upon the charge of fraud in the creditor's affidavit annexed to the writ upon which the debtor was arrested. The charges of fraud are " by way of answer " to the debtor.^ The creditor may, at his sole option, file or not file such a charge, or any other of the charges of fraud allowed by the statute, although they were not 1 Morse !;. Dayton, 125 Mass. 47 (1878), Report after Appeal. CHAEGES OF FEAUD. 61 in his affidavit before the arrest, and demand a trial on them or not, and finish or abandon such a trial after it has been begun, no matter when the charges were made. The reason is, that, up to the point of the magistrate's sentence to imprisonment, the trial upon a charge or charges of fraud, as well as the examination for the poor debtor's oath, is for the purpose of pressing the debtor to pay, and therefore the creditor controls it by using or abandoning the process.^ After sentence the debtor is punished without regard to the debt, for the fraud that has been proved. Whether the examination for the oath, or the trial upon the charge of fraud, disclosed property or not before sentence, and whether the creditor's judgment is satisfied or not after sentence, the fraud is then punished after sentence for the same reason that other ofPences are punished by the State. The civil process at this point yields to the criminal pro- cess of imprisonment under sentence.^ After serving out the sentence as a criminal for the good of the State, the debtor may then again begin the civil pro- cess by applying anew to take the poor debtor's oath, and he is then subject to have new charges of fraud filed against him by the creditor. But see 435 et seq. 51. Abandonment of Charges. — Waiver. — Debtor s Promises to Pay. — A creditor's abandonment of pro- ceedings on charges of fraud and default is not cured by the fact that the debtor merely promised to pay 1 O'Connell v. Hovey, 126 Mass. 310 (1879), Contract on Recognizance. 2 Parker v. Page, 4 Gray, 533 (1855), Exceptions after Ap- peal; Chamberlain v. Hoogs, 1 Gray, 172 (1854), Exceptions after Appeal. By motion creditors may prevent sentences. (435.) 62 STATUTES AND CASES. the debt. Hence the debtor's oath and discharge were valid because the creditor failed to appear.^ 52. New Oath after Sentence. — Under G. S. c. 124^ § 34, a debtor who had been found guilty and sen- tenced on a charge of fraud, could not have the bene- fit of the poor debtor's oath, even after his sentence expired.2 Consequently the St. 1872, c. 281, ,i§ 2, now incorporated in P. S. c. 162, § 52, was passed, allowing a new application after the expiration; of a sentence. When Chakgks of Feaud mat be Filed. 53. On Mesne Process. — Under G. S. c. 124,' § 31, charges of fraud could ,be filed when a defendant, arrested on mesne process, had applied for the poor debtor's oath.^ The law remains so under! P. S. c. 162, § 49. ( 54. Discharge in Bankruptcy. — Appeal. — r After an arrest made before the passage of the United States Bankrupt Act of 1867, it was held that a cer- tificate of discharge in bankruptcy under the act was no bar to a debtor's being sentenced and imprisoned in proceedings to punish him on charges of fraud under G. S. c. 124, §§ 31-84 (also filed .before the act) ; this punishment being of a criminal nature, as distinguished from the civil nature of the question of his possession of property and the civil nature 1 O'Connell v. Hovey, 126 Mass. 310 (1879), Contract on Ee- cognizance. 2 Dennis's Case, 110 Mass. 18 (1872), Habeas Corpus. s Horton v. Weiner, 124 Mass. 92 (1878), Exceptions after Trial on Appeal. CHARGES OF FRAUD. 63 of the beginning of tlie proceedings by the debtor's application for the oath to which the charges of fraud are incidental. The question of the effect of the dis- charge in bankruptcy on the poor debtor process, as concerning property alone, was expressly not passed upon.^ 55. Punishment. — Bankruptcy. — Filing Claim. — A creditor who, pending a poor debtor hearing, proved, as a claim in the debtor's bankruptcy proceed- ings, the judgment upon which the execution issued on which the debtor was arrested, was not thereby barred from prosecuting charges of fraud filed afterwards.^ The court (Gray, C. J.), after alluding to the appli- cation to take the poor debtor's oath, said (p. 49), " The proceedings on such an application, and on the incidental charges of fraud against the debtor, are not affected by the commencement of bankruptcy proceedings, or even by a certificate of discharge ob- tained thereon." Then Stockwell v. Silloway (105 Mass. 517) is cited, in which the same learned judge, when an associate justice, said, in the opinion of the court (p. 518), "Assuming — though not deciding, because it is unnecessary to do so — that the certi- ficate of discharge in bankruptcy exonerated the debtor from his debt to this creditor, and from arrest on all process which had no other object than to enforce or secure payment of that debt" and then proceeded to the point decided, which was that the punishment for charges of fraud was not barred by such a dis- charge. 1 Stockwell V. Silloway, 105 Mass. 517 (1870), Exceptions after Appeal, and the same case, 100 Mass. 287 (1808). 2 Morse v. Dayton, 125 Mass. 47 (1878), Report after Appeal. 64 STATUTES AND CASES. 56. Affidavit of Fraud for Arrest pending Exami- nation before Arrest. — Specification. — Amendment. — It is important for counsel for judgment creditors to remember that, although a charge of fraud can- not be "filed" under P. S. c. 162, § 49, at an ex- amination (§§ 18-24) of a judgment debtor before an arrest, nevertheless (39, 41, 45), before, during, or after such an examination, an affidavit of any charge of fraud under § 17 may be made ; and the debtor may be thereupon arrested, notwithstanding the commencement of the proceedings under §§ 18-24 upon the first charge of § 17. Hence, if fraud appears at such examination, the creditor, or some one in his behalf, may at once, and, in presence of the debtor, make affidavit of the charge of fraud, and apply for and receive a certificate for the debtor's arrest v?ith- out waiting for the magistrate's decision concerning the debtor's property and obedience. Then the debtor may be at once arrested, and if he is willing to waive his right to the delay of a recognizance, and is not willing to go to jail, he may apply at once for the poor debtor's oath, the creditor may waive notice, and the examination may be begun. Then the credi- tor can ask for a trial upon the charge of fraud in his affidavit, or can file any other charge of fraud in § 17, and can file specifications if necessary, and, without loss of time, the whole matter may be concluded. Practically, however, such speed is unusual. The creditor frequently needs more time to prepare his specifications. But if he has evidence enough to make oath to a charge of fraud, he need not delay filing it with such specifications as are then possible, because he may amend them if necessary (61). The CHARGES OF FBATJD. 65 original provisions for trials on charges of fraud in R. S. c. 98, §§ 27-40, say, § 30 ; " the justices or the court . . . shall have the same powers, with respect to amendments, costs, and all other incidents of the suit, as justices of the peace or other courts have in civil actions." The reference to that section in 61 is important for construction. By whom Filed. 57. Signed hy one Partner. — Charges of fraud signed by one of several partners who were judg- ment creditors satisfied the statute, R. S. c. 98, §§ 27-30.1 The law remains so under P. S. c. 162, § 49. 58. Wife against Husband. — Alimony. — Charges of fraud may be filed by a wife against her husband arrested on an execution after a decree for alimony. G. S. c. 124, § 23 ; St. 1873, c. 352, § 3. Acts done before the petition for alimony was filed were not done " since the cause of action accrued," and hence evidence of these did not support a charge of fraud under G. S. c. 124, § 5, cl. 2.^ The law remains so under P. S. c. 162, §§ 17, cl. 2, 41. Specifications and Amendments. 59. When the creditor wishes the debtor to be tried upon the charges in either the second or third or fourth clauses of P. S. c. 162, § 17, he must file not only the charges in substantially the general form of the statute, omitting the alternative form, " or," 1 Brown v. Tobias, 1 Allen, 385 (1861), Appeal after Appeal. 2 Foster v. Foster, 130 Mass. 189, Exceptions after Appeal. 66 STATUTES AND CASES. but he must also add specifications, in order that the debtor may know what he is to be tried for. But the charges contained in the fifth and sixth clauses seem to be sufficiently specific without any addition. 60. -Form of Specifications. — Charges of fraud un- der Gr. S. c. 124, § 31, were sufiicient if stated with such fulness, clearness, and precision as to inform the debtor of the nature and particulars of the transaction intended to be proved against him, although not in the form appropriate to indictments and criminal complaints.^ The law remains so under P. S. c. 162, §49. 61. Amendment. — It was held that in charges of fraud under G. S. c. 124, § 31, the word " charges " is suflBciently formal; references may be made to documents annexed for specification, the venue need not be laid, and time, if alleged as " on or about " certain dates which fall within the limitation of three years, although thus uncertainly and defectively al- leged, may be cured by amendment if necessary. The court (Gray, J.) referred to R. S. c. 98, § 30, as showing the power of the court as to amendments " under the more condensed provisions of the G. S. c. 124, § 31." 2 The law remains so under P. S. c. 162, § 49. 62. Specifications. — Trial. — Appeal. — All Charges open. — A magistrate found a debtor guilty of one charge^ and not guilty of other charges of fraud filed 1 Stookwell V. Silloway, 100 Mass. 287 (1868), Appeal after Appeal. 2 Stookwell V. Silloway, 100 Mass. 287 (1868), Appeal after Appeal. CHAEGES OF FEAUD. 67 under G. S. c. 124, § 31. On appeal, the debtor at the trial, after the magistrate's copies were read, moved to dismiss because the allegation on which he had been found guilty by the magistrate did not allege certain property to be the property of the debtor. It was held that, upon the appeal, the case stood for trial' on all the charges, and also that the said charge was " in the nature of a specification " under the charge of fraudulent conveyance of his property, and must be construed in connection with it, from which it appears that the propertj'- was his. Hence the mo- tion to dismiss should not have been allowed.^ The law l:emains so under P. S. c. 162, §§ 49-52. 63. Intention not to pay. — The iutention not to pay in the charge of fraud under R. S. c. 98, § 31, el. 4, " that the debtor contracted the debt, with an intention not to pay the same," was not charged by the words " he did not intend to pay the same," or by the words " having no intention to pay the same, and having no expectation that it would be paid," 2 and such charges were bad even after verdict. The law remains so under P. S. c. 162, § 17, cl. 5, § 49. ' 64. Amendment hy Specifications. — The magistrates could allow amendments of charges of fraud filed un- der R. S. c. 98. In this case a specification was added which might be understood to be included in a gen- eral allegation originally made. A fraudulent con- veyance had been alleged, and the amendment added 1 Clatur V. Donegan, 126 Mass. 28 (1878), Exceptions on Appeal. 2 Chamberlain v. Hoogs, 1 Gray, 172 (1854), Motion in Arrest of Judgment on Appeal. 68 STATUTES AND CASES. that it was done since the debt was contracted.^ The law remains so under P. S. c. 162, § 49. Evidence. 65. Civil Proceedings. — Preponderance of Evidence. — Witnesses. — Charges of fraud are filed " as one of the incidents of proceedings essentially in their nature civil " under G. S. c. 124, and hence require only a clear preponderance of evidence, and not proof beyond a reasonable doubt. Hence, also, the cred- itor could call the debtor and his wife as witnesses under St. 1870, c. 393 (corresponding to P. S. c, 169, § 18).2 The law remains so under P. S. c. 162, § 49, and c. 169, § 18. 66. Intention not to pay. — Hvidence. — Under G. S. c. 124, §§ 5, 31, upon the trial of a charge that the de- fendant contracted the debt with an intention not to pay the same, the plaintiff " might and must prove " that the debt was contracted.^ The law remains so under P. S. c. 162, §§ 17, 49. 67. Evidence of other Frauds. — Record of Former Conviction Conclusive. — After appeal under -G. S. 0. 124, §§ 32, 33, from a magistrate's decision of not guilty, the record of a judgment of the superior court in previous poor debtor proceedings between the same parties, finding the defendant guilty of charges of fraudulent conveyances, was competent to prove 1 Brown v. Tobias, 1 Allen, 385 (1861), Appeal after Appeal. 2 Anderson v. Edwards, 123 Mass. 273 (1877), Exceptions to Instructions on Appeal. 8 Horton v. Weiner, 124 Mass. 92 (1878), Exceptions after Trial on Appeal. CHAEGES OF FEAUD. 69 other frauds as part of the same scheme, and was conclusive evidence that the said conveyances were fraudulent. Although this was collateral to the main issue in the present case, it was nevertheless material, and, having been tried and determined, could not be litigated anew. The court (Morton, J.) said : " We have assumed, though it does not distinctly appear, that the proceedings in the two cases were indepen- dent proceedings upon different debts of the plain- tiff." But if they were upon the same debt, these proceedings were coram non judice, for they were begun before the St. 1872, c. 281, incorporated in P. S. c. 162, § 52, allowing a new application for the oath after sentence.^ Appeal. 68. Appeal. — Constitutional. — The creditor's right to an appeal after the magistrate's judgment in favor of the debtor under G. S. e. 124, § 32, was held to be not unconstitutional.^ 69. Appeal to he entered at Civil Term. — An ap- peal on charges of fraud under R. S. c. 98, §§ 27-38, was rightly entered at the civil term of a court when the civil and criminal terms were distinct.^ The law remains so under P. S. c. 162, §§ 49-52. 70. Motion to dismiss. — At the trial in the Su- perior Court on charges of fraud, under G. S. c. 124, 1 Stockwell V. Silloway, 113 Mass. 384 (1873), Exceptions after Appeal. 2 Stockwell V. Silloway, 100 Mass. 287 (1868), Appeal after Appeal. 3 Parker v. Page, 4 Gray, 533 (1855), Exceptions on Motion to dismiss Appeal for Want of Jurisdiction. 70 STATUTES AND CASES. § 31, after tlie magistrate's copies were read, a debtor moved to dismiss the case, and it was held that the motion was seasonably made.^ 71. Appeal. — Motion to dismiss. — Waiver. — Recog- nizance hy one Partner. — A debtor, who for the first time objects to an appeal on charges of fraud under R. S. c. 98, after rendition of the final judgment in the Superior Court, for the reason that the recognizance was by one and not by several partners, creditors, was held to have waived the objection, "if' he could ever have availed himself of it." ^ 72. Appeal. — Copies in Superior Court. — Record. — A creditor proceeded to trial on an appeal upon charges of fraud without objecting to the omission of the debtor to file in the Superior Court copies of the charges of fraud and the plea thereto, and of his ex- amination, and it was held that the creditor's motion in the course of the trial, to have the debtor defaulted for the above omission, was not then allowable. The court made the following suggestion : " Whether a postponement or suspension of the trial should have been granted, if moved for, until such copies were furnished, is not before us."^ 73. Appeal hy one Party. — All Charges opened. — Under G S. c. 124, § 32, and c. 120, § 25, an appeal by only one party vacated the whole judgment of the magistrate on the charges of fraud, and opened the case for trial upon all the charges of fraud, notwith- 1 Clatur V. Donegan, 126 Mass. 28 (1878), Exceptions on Appeal. 2 Brown v. Tobias, 1 Allen, 385 (1861), Appeal after Appeal. 8 Morse v. Dayton, 128 Mass. 451 (1880), Appeal on Charges of Fraud. CHARGES OF PEAUD. 71 standing the fact that the other party did not appeal.^ See P. S. c. 162, § 50, and c. 155. 74. Appeal. — Arrest after it on Same Execution. — Where a debtor had had the poor debtor's oath re- fused him, and had been also sentenced upon charges of fraud, and appealed, his appeal did not carry up the whole case, but only the finding upon the charges of fraud. Hence, an arrest on the same execution after a recognizance under St. 1857, c. 141, § 10, was sus- tained by Shaw, C. J.^ This was upon the ground that the magistrate "refused to administer the oath to him on the ground that he possessed property." That is to say, the magistrate's reasons for his decision were considered. If not as much as twenty dollars had been found, he could have gone at large on the recog- nizance. See (76) and (77) concerning Mowry's Case. The law remains so under P. S. c. 162, §§ 50, 51. 75. Poor Debtor's Oath administered after Appeal. — Under R. S. c. 98, although the creditor ap- pealed from the magistrate's decision that the debtor was not guilty of charges of fraud, the magistrate could nevertheless administer the poor debtor's oath, the debtor could be discharged from imprisonment, and, if he was at large on bail, his bail could be dis- charged.^ The law remains the same under P. S. c. 162. Judgment in favor of the creditor on the ap- peal did not affect the bail so released. P. S. c. 162, § 52, says that, " if upon a final trial he (the defend- ^ Morse v. Dayton, 125 Mass. 47 (1878), Report after Appeal and Verdict. 2 Fletcher v. Bartlett, 10 Gray, 491 (1858), Habeas Corpus. ' IngersoU v. Strong, 9 Met. 447 (1845), Action against Magistrates. 72 STATUTES AND CASES. ant or debtor) is found guilty of any of them, he shall have no benefit from the proceedings under this chap- ter; " and this provision was contained in R. S. c. 98, § 36, and was urged by counsel ; but the court, in discussing the whole chapter, referred to the new statutes about fraud as being added to the older poor debtor's statutes, and as requiring a construction which would prevent the debtor from suffering unreasonably long confinement. As a consequence, the sureties of the debtor are released, and the creditor has not the logically full benefit of an appeal. But if this con- struction be not held, then, as the court (Dewey, J.) said, " a procrastination for a very extended period is placed in the power of the creditor." For instance, the creditor could harass an honest debtor by filing charges of fraud, and, whether he had evidence or not, by appealing to the then Court of Common Pleas, now the Superior Court, and thence to the Supreme Court, and meanwhile, if the debtor cannot get sure- ties, no matter how honest he is, " years may elapse before the time arrives for taking the oath, and ob- taining the discharge of his body from imprisonment." ^ 1 Ingersoll v. Strong, 9 Met. 447 (1845) , Action against Mag- istrates; Collamore v. Fernald, 3 Gray, 318 (1855), Contract on Bond. The language of the court in these cases, taken apart from the statement in the declaration in IngersoU v. Strong, might seem to mean that, if the magistrates find the charges of fraud unsupported by proof, it is their duty " to declare their judgment to that effect, by administering the oath to the debtor " (IngersoU v. Strong, p. 453), as if it were proper for the magis- trates to administer the oath without reference to the contents of the oath itself, and their judgment of whether the debtor should take that even if not guilty of a charge of fraud. But it appears from the declaration (p. 448) that the magistrates were " satisfied from the examination ... of the truth of the facts set forth in the oath." CHAEGES OF FRAUD. 73 76. Appeal. — Judgment. — Substitute for Oath. — Charges of Fraud. — Arrest. — Jurisdiction. — Oath refused for Fraud not Property. — The magistrate adjudged that the debtor had not property enough to prevent the poor debtor's oath, but found him guilty of the charge filed, that he had fraudulently conveyed a part of his estate, and upon this single ground re- fused him the oath. The debtor appealed and recog- nized to prosecute his appeal, but after this, and pending the appeal, was again arrested and committed on the same execution. This arrest was held to be illegal for the reason that the magistrate had given judgment in the debtor's favor upon the question of his possession of property, " the only issue which was within his final jurisdiction." (p. 403.) The parenthetical clause in G. S. c. 124, § 26, " (if the oath for the relief of poor debtors has not been re- fused him)," was held not to abridge the right, under G. S. c. 124, § 33, of a debtor charged with fraud, to recognize to prosecute his appeal. Gray, G. J., also said in substance that if the trial on the charge of fraud in the Superior Court, in such a case, resulted in the debtor's favor, it would take the place of the poor debtor's oath, because the magistrate had found in the debtor's favor on the point of property, there was nothing else to decide and the statutes do not provide for a new application before the expira- tion of a final sentence, p. 400.1 gt. i872, c. 281 § 2 (P. S. c. 162, § 52). 437 discusses the opinion. 77. It is important to notice, in the opinion of the learned court in Mowry's Case (437), the statement concerning the issue before the magistrate upon the 1 Mowry's Case, 112 Mass. 394 (1873), Habeas Corpus. 74 STATUTES AND CASES. question whether or not he shall administer the poor debtor's oath. The court said of a magistrate's find- ing that the debtor " had not any estate ... to the amount of twenty dollars " (p. 395, but see 437) ; he " has decided the first issue, and the only issue which is within his final and exclusive jurisdiction in favor of the debtor " (p. 398); and again it refers to " the only issue which was within his final jurisdiction" (p. 403). This may not ignore the fact that evidence of a fraudu- lent disposal of property may be given upon the ex- amination for the poor debtor's oath, which would be excluded at the trial for fraud by P. S. c. 162, § 49, or G. S. c. 124, § 31. Under both G. S. c. 124, §§ 21, 22, and P. S. c. 162, §§ 39, 40, the magistrate may refuse the oath because of evidence of present property discovered by testimony of fraudulent transactions " committed more than three years before the com- mencement of the original action." That limit is con- fined to the trial under § 49 (437). The question whether property prevents the oath is whether the debtor " now " (P. S. c. 162, § 40) has property to the amount of twenty dollars, not exempt, whether in his open possession or fraudulently disposed of, so that he still " has " it. No limit of time is put upon the " legal and pertinent evidence that may be introduced by either party " (P. S. c. 162, § 38) to trace any prop- erty into or out of the legal or equitable ownership of the defendant or debtor who has applied to take the oath. The limit of P. S. c. 162, § 49, is to evidence which is introduced with a view to a sentence to crimi- nal punishment. The meaning of the system is that no matter when fraud was committed, it may be shown upon the examination for the poor debtor's CHARGES OF FBAXJD. 75 oath, in order to prove that the defendant or debtor " now " has propertj'^ in order that the plaintiff or cred- itor may get his money if possible. But the interests of the Commonwealth are not thought by the legisla- ture to require that fraud committed " more than three years before the commencement of the original action" shall be punished in such proceedings. The result of the court's construction of the stat- utes in the cases mentioned in 74 and 76 is that it is the magistrate's reason for refusing the oath, and not his refusal of the oath, which is the test whether a debtor, pending his appeal upon a charge of fraud, can be arrested again upon the execution. (435). NoTB. — These remarks suggest the likeness between the ex- amination for the poor debtor's oath (P. S. c. 162, §§ 38-40) and the examination of a judgment debtor after a citation (§§ 18-24) before an arrest, in respect to the relevancy and admission of evidence concerning fraud, to prove present property. The dif- ference between these two examinations has been dwelt upon in the preceding chapter (38-45). The likeness consists in the fact that, in both examinations, evidence of fraud is relevant, and admissible, — without any limit as to time, — but merely to prove present property upon " the only issue " which is within the magistrate's "final and exclusive jurisdiction;" and that is the fact of property. And, even pending the examination for the poor debtor's oath, it is only when the plaintiff or cred- itor has filed a charge of fraud and proceeded to a trial upon it, that such a trial can be undertaken, and that evidence of fraud, as such, is relevant and admissible ; for then it is upon the addi- tional issue of guilt or innocence. Although the magistrate's judgment of guilty involves his refusal of the oath, whether property appears or not, and his judgment of not guilty may be given with the refusal or allowance of the oath according to whether property appears or not, nevertheless the examination for the oath and the trial upon the charge of fraud are logically and essentially distinct. They may be carried on at the same time if the parties agree, or one after the other, as is more regu- 76 STATUTES AND CASES. lar; but they are as distinct as a declaration upon one contract and a declaration in set-ofE upon another contract. It is important for counsel for defendants and debtors to remember this distinc- tion, for it enables them to object to unreasonable cross-exam- inations by plaintiffs or creditors, for the purpose of finding fraud which they have no evidence of and cannot charge. Form of Specification. — Gaming. — Amounts. — A charge _ that the defendant " hazarded and paid the sum of one hundred and twenty-five dollars in a certain unlawful game played with cards, and called draw poker or bluff," and that the said de- fendant " did hazard and pay the said sum of one hundred and twenty-five dollars in said gaming as aforesaid, which is prohibited by the laws of this Commonwealth," was held suffi- ciently to aver that the defendant had hazarded and paid money in some kind of gaming prohibited by the laws of the Common- wealth. One of the remaining charges which was so sustained alleged in the same manner the hazarding and paying the sum of thirty dollars. But the other so sustained was of more than one hun- dred dollars, which satisfies P. S. c. 162, § 17. The judge instructed the jury " that if they found the game of draw poker, as described by witnesses, to be a game of chance on which money was hazarded upon the kind of cards held by the respective players, or by betting upon the hands so held, and if chips redeemable in money were used by the players in place of money, then it was gaming prohibited by the laws of this Commonwealth." The exception to this was overruled. Chapin V. Haley, 133 Mass. 127 (1882), Charges of Fraud. Discharge without Examination. — Charges of Fraud aban- doned. — Creditor not attending. — Appeal. — Although a cred- itor has filed charges of fraud, if he is defaulted for non-attend- ance his charges are thus abandoned. The debtor shall be discharged without examination, and the creditor cannot after- wards come in and appeal, although the magistrate has exceeded his jurisdiction by administering the oath and entering judg- ment on the charges of fraud. Longley ». Cleavland, 138 Mass. 256 (1882), Appeal on Charges of Fraud. Fraud. — Intention not to pay. — Dow v. Sanborn, 3 Allen, 181 (183), (1861), Tort. Case in Nature of Conspiracy to conceal Property and take Poor Debtor's OaiA. — Wellington v. Small, 3 Cush. 145 (1849), Case. CHARGES OF PEAUD. 77 Appeal. — Bankruptcy. — Charges of Fraud. — Bankruptcy proceedings under U. S. St. 1867, c. 176, begun by a debtor after his appeal on charges of fraud, were not a bar to the creditor's prosecution of the appeal under G. S. c. 121, §§ 31-34. In this case the poor debtor process was begun before the bankrupt act took effect. Stockwell u. SiUoway, 100 Mass. 287 (1868), Ap- peal after Appeal. (54, 55.) Origin and Nature of Charges of Fraud. — An outline of the law concerning charges of fi'aud is given opposite the title page of this book, in a quotation from the opinion in this case. (See also 68.) See also the preceding chapter, 38-45, and the titles Charges or Fraud and Fraud in the Index. 78 STATUTES AND CASES. RECOGNIZANCES. Recognizances are a very common and convenient means of getting a temporary release from arrest or imprisonment, and of gaining time to prepare for an examination. Defendants arrested upon mesne pro- cess, and judgment debtors arrested upon execution, resort to this relief constantly; and it is in actions for breach of a recognizance that much of the poor debtor law has been developed by the construction put upon the statutes by the court. It is important to bear in mind that a recognizance is an oral act, and that the magistrate's so-called " record," whether in the brief form of mere minutes or in the extended formal shape, is always a memo- randum of the oral act, and is not the recognizance itself. Even where a recognizance is taken by a magistrate who does not hold a court of record, his memorandum is often spoken of by the court as his " record," for the convenience of dealing with it. A recognizance is a good point from which to begin to study the poor debtor law, because the validity of the obligation depends upon the legality of the arrest and other previous proceedings ; because the recognizance itself usually involves a surety and the peculiar law of that relation ; and because, not- withstanding the temporary relief afforded by it, the obligor's compliance or breach sometimes involves a range of law that throws much light upon the rela- tion of debtor and creditor. BECOGNIZANCES. 79 Jurisdiction. 78. Before Second Magistrate after Notice to Creditor. — A surety was not bound by a recognizance under G. S. c. 124, § 10, taken before a second magistrate after the debtor had applied to one magistrate for an examination, and had a notice under § 12 served on the creditor; for "the jurisdiction had attached" to the first magistrate, and neither the application to the first magistrate nor the notice to the creditor had been withdrawn.^ The law remains so under P. S. c. 162, §§ 28, 31. FoKM. Recitals. 79. Form. — Recital of Jurisdiction. — A memo- randum of a recognizance under Gr. S. c. 124, § 10, did not need to contain an averment that the magistrate had jurisdiction. The recognizance in this case set forth the facts showing jurisdiction.^ The law re- mains so under P. S. c. 162, §§ 28, 36. 80. Amount. — Less than double. — A recognizance for twenty-five cents less than double the amount of the execution was held good, the language of the statute (St. 1855, c. 444) not being imperative, the debtor having assented, and the creditor not having rejected the obligation.^ The law remains 'so under P. S. c. 162, §§ 28, 36. 81. Less than Statutory Amount. — The provision 1 SnelliDg V. Coburn, 10 Allen, 3M (1865), Contract on Recognizance. ^ Commonwealth v. Cutler, 98 Mass. 31 (1867), Contract on Kecognizauce. 8 Thacher v. WiUiams, 14 Gray, 324 (1859), Contract on Kecoguizance. 80 STATUTES AND CASES. of G. S. c. 124, § 17, that the recognizance shall be " in a Bum not less than double the amount of the execution, is merely directory. Hence a recognizance for less was held to be binding.^ The law remains so under P. S. c. 162, §§ 28, 36. 82. Amount. — More than double. — A recognizance for more than double the amount of the execution was valid under G. S. c. 124, § 10.^ The law re- mains so under P. S. c. 162, §§ 28, 36. 83. Naming Magistrate. — It was unnecessary for a recognizance under G. S. c. 124, § 17, to name the magistrate before whom the debtor was to appear.^ The law remains so under P. S. e. 162, §§ 28, 86. 84. Form specifying Examination and Magistrate. — A memorandum of recognizance which followed G. S. c. 124, § 10, in using the general terms " his examination" and "some magistrate," was suffi- ciently specific* The law remains so under P. S. c. 162, § 28. 85. Omission of Time for Examination. — The omis- sion of the time fixed for the examination of a judg- ment debtor in a recognizance under G. S. c. 124, § 17, did not affect its validity.^ The law remains so under P. S. c. 162, §§ 28, 36'. 1 Wiittier v. Way, 6 Allen, 288 (1863), Contract on Recog- nizance ; Gilmore v. Edmunds, 7 Allen, 360 (1863), Contract on ' Recognizance. 2 Barton v. Floyd, 109 Mass. 61 (1871), Contract on Recogni- zance. 8 Cook V. Thayer, 121 Mass. 415 (1877), Contract on a Recognizance. * Commonwealth v. Cutler, 98 Mass. 31 (1867), Contract on Recognizance. 6 Gilmore t'. Edmunds, 7 Allen, 860 (1863), Contract on Recognizance. RECOGNIZANCES. 81 86. Omission of Place for Examination. — The omission of the place fixed for the examination of a judgment debtor in a recognizance under G. S. c. 124, § 17, did not affect its validity.i The law- remains so under P. S. c. 162, §§ 28, 36. 87. Condition referring to Notice inaccurately. — A recognizance under G. S. c. 124, § 10, after St. 1861, c. 112, referring to notice according to G. S. c. 124, § 10, without referring to the later statute, was not void. The court (Morton, J.) said, "The direction as to giving notice is not essential to the validity of the recognizance." ^ The law remains so under P. S. c. 162, §§ 28, 36. 88. Form. — Recitals. — A recognizance under St. 1857, c. 141, was held good, although the caption of its memorandum, which recited all the preliminary proceedings, did not recite that the debtors desired to take the poor debtor's oath ; and, although the promise of delivery up and the magistrate were not described more fully than in the condition, which was, " Now if the said defendants shall, within ninety days from the time of their arrest, deliver themselves up for examination, giving notice thereof as in the statutes in that behalf provided, and shall make no default at any time fixed for their examination, and shall abide the final order of the magistrate there- on, then this recognizance shall be void ; otherwise to remain in full force and virtue."^ This would 1 Whittier v. Way, 6 Allen, 288 (1863), Contract on Eecog- nizance. 2 Cassidy v. Hart, 104 Mass. 221 (1870), Contract on Recog- nizance. ' Adams v. Stone, 13 Gray, 396 (1859), Contract on Kecog- 6 82 STATUTES AND OASES. be good now if for thirty days under P. S. c. 162, § 28. 89. 'Form. — Oondition. — A recognizance under G. S. c. 124, § 10, was not invalidated by the follow- ing reference in the condition to the facts stated in a foregoing recital, " That the said judgment debtor, within thirty days from the time of his arrest, as above mentioned."^ The law remains so under P. S. c. 162, §§ 28, 36. Compliance and Breach. 90. Agreement to pay. — Condition Absolute. — Debtor must appear. — Although both parties had appeared after a recognizance, -when neither the debtor nor the creditor appeared after an adjournment, the debtor nevertheless, by not appearing, committed a breach ; and an agreement between them that the debtor was to pay the debt in instalments did not prevent the breach.2 91. Delivery up within thirty Days. — The condi- tion for delivery up under a recognizance under G. S. c. 124, § 10, was complied with if the jurisdiction of the magistrate began within the thirty days, and juris- diction began when the debtor procured the issue of a notice from the magistrate to the creditor for the examination.^ The law remains so under P. S. c. 162, §§ 28, 36. nizance ; Thaoher v. Williams, 14 Gray, 324 (1859), Contract on Recognizance under St. 1855, c. 444. 1 Commonwealth v. Cutter, 98 Mass. 31 (1867), Contract on Recognizance. "■ Merrill v. Roulstone, 14 Allen, 511 (1867), Contract on Re- cognizance. 8 Barnes v. Ladd, 130 Mass. 557 (1881), Contract on Recog- EECOGNIZANCES. 83 92. Attendance of Magistrate. — A debtor who had entered into a recognizance under St. 1857, c. 141, was held liable thereunder because he had not pro- cured the attendance of a magistrate at the appointed time and place, the creditor having then and there appeared.^ A discharge granted at a subsequent hearing was void, for no valid new notice was given. The law remains so under P. S. c. 162. 93. Debtor to procure Magistrate^ Attendance. — Under a recognizance under G. S. c. 124, § 17, the debtor was obliged to have a magistrate present, even if only to adjourn and make a certificate under St. 1870, c. 11? The law remains so under P. S. c. 162, §§ 28, 36, 67. 94. Ohligee^s Duty as to delivering himself up. — A debtor gave notice and appeared according to his recognizance, but the creditor did not appear, and the magistrate refused to administer the poor debtor's oath and made no certificate. The debtor then de- parted. It was held that he had delivered himself up under the statute 1855, c. 444, § 9, and that it was not his duty either to seek or to deliver himself up to the sheriff or his deputy under those circum- stances.^ The law remains so under P. S. c. 162, §28. 95. Appearance to object to Examination. — A debtor under a recognizance under G. S. c. 124, § 10, who 1 Adams v. Stone, 13 Gray, 396 (1859), Contract on Recogni- zance; Thacher v. Williams, 14 Gray, 324 (1859), Contract on Eecognizance. 2'MomU u. Norton, 116 Mass. 487 (1875), Contract on Re- cognizance. 3 Jacot V. Wyatt, 10 Gray, 236 (1857), Contract on Kecogni- 84 STATUTES AND OASES. appeared, but objected to being examined because the execution was not produced, thereby committed a breach. 1 The law remains so under P. S. c. 162, §§ 28, 86. 96. Attendance on Sunday. — Adjournment. — After a recognizance under G. S. c. 124, § 10, and an ap- pearance by both parties, and a postponement to a certain Sunday, when the magistrate did not appear, there were no further proceedings. It was held that there liad been a breach. And it was said that " it was the duty of the debtor to procure the attendance of a magistrate to adjourn the examination." ^ This remains the law under P. S. c. 162, §§ 28, 36. 97. Default within Thirty Days not necessarily a Breach. — Failure of a debtor to appear and take the poor debtor's oath at the appointed time, when the time limited by the recognizance had not expired, was held not to be a breach of the recognizance ; since he could at any time after that, within the thirty days, have given due notice of his desire to take the oath. Hence an amendment of a declaration was required.^ The law remains so under P. S. c. 162, §28. 98. Default, hut Compliance within Thirty Days. — The condition of a recognizance under G. S. c. 124, § 10, was not broken by a debtor's default in pro- 1 Simpson u. Trivett, 120 Mass. 147 (1876), Contract on Re- cognizance. ^ Hooper v. Cox, 117 Mass. 1 (1875), Contract on Recogni- zance; Estes V. Mitchell, 14 Allen, 156 (1867), Contract on Recognizance. 8 Millett V. Lemon, 113 Mass. 355 (1873), Contract on Re- cognizance; Skinner v. Frost, 6 Allen, 285 (1863), Contract on Recognizance. RECOGNIZANCES. 85 ceedings before a magistrate, when the debtor was discharged in regular proceedings begun before an- other magistrate within the thirty days, and more than seven days after the first notice, according to G. S. c. 124, § 14.1 -pijg i^^ remains so under P. S. c. 162, §§ 28, 33, 36. 99. Departure. — Parol Proof of Breach. — Uvi- dence. — A debtor's departure from the examination, under a recognizance under St. 1857, c. 141, after he had been informed by the magistrate that his exami- nation was not concluded, was a breach, and could be proved by parol.^ The law remains so under P. S. c. 162, §§ 28, 36. 100. Waiting for Certificate of Refusal. — Breach. — A debtor under a recognizance under G. S. c. 124, § 10, committed a breach when he departed before the magistrate had completed the certificate which was necessary before the ofiicer, whe-ther present or absent at the oral decision, could arrest him on the execution, although the magistrate had orally an- nounced his decision to refuse the oath.^ He must " abide the final order of the magistrate." The law remains so under P. S. c. 162, §§ 28, 36. 101. Presence of Officer and Execution. — "Neither the presence of the execution nor that of the oiBcer was important until the magistrate was prepared by the completion of his certificate to annex it to the exe- 1 Sweeney e. Gillooly, 103 Mass. 549 (1870), Contract on Re- cognizance. 2 Peck V. Emery, 1 Allen, 463 (1S61), Contract on Recogni- zance. 8 Lothrop V. Bailey, 14 Allen, 514 (ISeY), Contract on Re- cognizance; Knight t). Sampson, 99 Mass. 36 (1868), Contract on Recognizance. 86 STATUTES AND CASES. cution, and thus empower the officer to take the per- son of the debtor into custody." ^ The law remains so under P. S. c. 162, §§ 28, 36. 102. Oath refused.' — No Certificate issued. — No Officer present. — No Breach. — A debtor who had appeared and been examined under a recognizance under St. 1857, c. 141, although the magistrate re- fused him the poor debtor's oath, could depart with- out a breach, when the magistrate issued no certificate, and no officer was present with the execution to arrest him.^ And also when the magistrate completed the certificate, but the officer was not then present, depar- ture was no breach.^ The law remains so under P. S. c. 162, §§ 28, 36. 103. Offer to surrender to Officer in Default of finding Magistrate. — A debtor under a recogni- zance according to St. 1855, c. 444, who failed to find a magistrate in time, did not prevent a breach by offering to surrender himself to the officer who made the arrest, and who had returned the execution into court.* The law remains so under P. S. c. 162, §§ 28, 36. 104. Oath and Discharge without pleading to Charges of Fraud. — When a debtor under a recognizance under G. S. c. 124, § 10, was permitted by the cred- 1 Fuller V. Meehan, 118 Mass. 135 (1875), Contract on Recog- nizance ; Simpson v. Trivett, 120 Mass. 147 (1876), Contract on Kecognizance. 2 Stone V. Russell, 11 Gray, 226 (1858), Contract on Recog- nizance. « Goodall V. Myrick, 111 Mass. 484 (1873), Contract on Recognizance. * Thacher v. Williams, 14 Gray, 324 (1859), Contract on Recognizance. EECOGNIZANCES. 87 itor to have continuances without pleading to charges of fraud filed, and finally had the poor debtor's oath administered to him and was discharged, the creditor defaulting, there was no breach.^ The law remains so under P. S. c. 162, §§ 28, 36. 105. When Breach begins. — Discharge in Insolvency within the Time limited. — A recognizance under St. 1857, c. 141, was held not to be forfeited until the expiration of the last day limited in it, and therefore the liability under it was not affected by a discharge in insolvency proceedings in which the first publica- tion of the notice of the warrant was on that same day. The claim was for necessaries, and hence also could not be affected by the discharge in insolvency since St. 1848, c. 304, § IO.2 Discharges. 106. Satisfaction of Judgment hy one of Joint Judg- ment Debtors. — Appearance. — Default. — Jurisdic- tion. — Evidence. — After a recognizance under G. S. c. 124, § 10, by one of several joint judgment debtors, the judgment was paid in full by another one of them, and the principal under the recognizance failed to ap- pear at the time for his examination. It was held that evidence of this was admissible in an action on the recognizance, for there was no breach, since the exe- cution was functus officio, and the magistrate had no further jurisdiction.^ The law remains so under P.S. c. 162,§ 28. 1 O'Connell v. Hovey, 126 Mass. 310 (1879), Contract on Recognizance. 2 Smith V. Randall, 1 Allen, 456 (1861), Contract on Recog- nizance. 3 Security Bank v. Hunnewell, 124 Mass. 260 (1878), Contract on Recognizance. ' 88 STATUTES AND CASES. 107. Discharge hy Injunction. — A creditor pro- cured an injunction, according to which an examina- tion under a recognizance under St. 1857, c. 141, § 10, was discontinued, and no further order was made by the magistrate. This discharged the debtor and the surety from the obligation of the recogni- zance. The question of another remedy by the cred- itor was not considered. 1 108. Imprisonment causing Breach. ■ — The arrest and imprisonment on a criminal charge of a debtor subject to a recognizance under G. S. c. 124, § 10, did not prevent the debtor's default from being a breach.^ The law remains so under P. S. c. 162, §§ 28, 36. 109. Surety on Recognizance discharged by Payment hy Surety on Bond. — A suretj'- under a recognizance under G. S. c. 124, § 10, was held to have been dis- charged by the payment of the judgment and costs by sureties on the principal debtor's bond, dissolving the attachment, for payment by one joint debtor extin- guished the judgment, and the action of the sureties on the bond against the surety on the recognizance could not be maintained. The court (Morton J.) said sub- rogation did not apply, and there was no privity of contract between the sureties of the bond and the surety under the recognizance.^ 110. Discharge hy Agreement. — On appeal after judgment for the defendants, it appeared by an 1 Palmer v. Everett, 7 Allen, 358 (1863), Contract on Recog- nizance. " Turner v. Bartlett, 109 Mass. 503 (1872), Contract on Re- cognizance. 8 Holmes v. Day, 108 Mass. 563 (1871), Contract on Recog- EECOGNIZANCES. 89 agreed statement of facts that after a recognizance and before the expiration of the thirty daj^s there- in limited, the plaintiff accepted from the defend- ant, Dresser, an agreement for payment of a certain sum, .and gave a receipt declaring it to be "in full discharge of all proceedings under said execution, provided the said Dresser shall pay said due-bill at maturity ; until said maturity of said due-bill the liability of said Dresser under said execution is to remain as at present." It was held that while here was neither a present discharge of the execution, nor release of the judgment, nor a good accord and satis- faction, the court always, on an agreed statement of facts, construed the statement as a submission on the real merits as distinguished from the pleadings, and would here presume that the court below made one of two inferences of fact warranted by the statement, namely, that the arrangement was intended either to release Dresser or to lead him to suppose that he was released ; and that in either case it discharged him and his surety. No consideration was necessary for this. It was merely an exercise of the plaintiff's con- trol over the process.^ 111. Conditional Extension of Time no Discharge of Surety. — A creditor agreed to discharge an execution on condition that the debtor made no default in paj'- ments, some of which fell within the time limited by his recognizance, under St. 1857, c. 141. The debtor defaulted on a payment falling within the time. It was held that this conditional agreement to extend did not discharge the surety, no consideration passing 1 Bullen V. Dresser, 116 Mass. 267 (1874), Contract on Recognizance. yU STATUTES AND CASES. to the creditor for it. The agreement stated that the surety was not to be released, but the case was de- cided upon the above grounds.^ 112. Waiver of Condition by Creditor. — A creditor waived the performance of the condition of a recog- nizance under G. S. c. 124, § 10, who asked the debtor to waive his right to proceed to give notice and try to take the oath and agreed to accept a cer- tain sum in instalments, and that "the same should be deemed to be in full satisfaction of said debt and execution," the most of which was in fact paid, the surety having been notified of the agreement.^ Evidence. 113. Taken Orally. — Memorandum ^Evidence. — A recognizance may be taken orally, and the magis- trate's memorandum of this, taken at the time, — there being no extended record of it, — is admissible in an action by a magistrate for his fees.^ 114. Evidence. — Recital of Facta not in Presence of Magistrate. — The magistrate's recitals in a memo- randum of a recognizance (under G. S. c. 124, § 10, or P. S. c. 162, § 28), are not evidence of facts sup- posed to have occurred in his absence.* 115. Extended Record or Memorandum not to he controlled or impeached hy Parol Evidence. — The 1 Abbott V. Tucker, 4 Allen, 72 (1862), Contract on Recog- nizance. 2 Chellis V. Leavitt, 124 Mass. 359 (1878), Contract on Re- cognizance. » Townsend v. Way, 5 Allen, 426 (1862), Contract for Fees. ■ * Learnard o. Bailey, 111 Mass. 160 (1872), Contract on Recognizance. BECOGNIZANCES. 91 magistrate's record of the taking of the recognizance under G. S. §§ 10, 11, (or P. S. c. 162, § 28), "when extended," cannot be controlled or impeached by parol evidence, and such evidence is inadmissible.^ 116. Evidence. — Proof of Breach. — In an action for breach of a recognizance, the mere production of the magistrate's memorandum of a recognizance under St. 1857, c. 141 (or P. S. c. 162, §§ 28, 36), and proof of his signature and oiBcial station does not make a prima facie case for the plaintiff.^ 117. Arrest and Recognizance Void for Omission of Capias in Writ. — Evidence. — Inspection of Writ. — A surety could raise the question whether the writ was a capias, notwithstanding the magistrate's reci- tal in the memorandum of a recognizance under 0. 124, " by virtue of a writ issued in due form of law." The writ being on file in the judge's own court, it had to be tried by inspection of the writ. Since the judge decided that the writ contained no capias, the arrest was illegal; and since the defect existed until after the arrest and the recognizance, these acts were void, and no subsequent amendment under G. S. c. 129, § 42, could cure them.^ 118. Pleading. — Declaration. — Recital of Magis- trate s Jurisdiction. — Evidence. — A declaration al- leged that a magistrate who took a recognizance 1 Sewall V. Sullivan, 108 Mass. 35.5 (1871), Scire Facias by Mistake, instead of Contract on Eeoognizance. ^ Blake v. Mahan, 2 Allen, 75 (1861), Contract on Recog- nizance. See also Thornton v. Adams, 11 Gray, 391 (1858), Action on Bond. 3 Learnard v. Bailey, 111 Mass. 160 (1872), Contract on Recognizance. See P. S. c. 162, §§ 28, 36, and P. S. c. L67, §44. 92 STATUTES AND CASES. under Gr. S. c. 124, was " a commissioner of insolvency in and for the County of Suffolk," and that he was " duly authorized to act in such cases." It was held that this sufiBciently showed his jurisdiction, for the court was " bound to know judicially that such an officer has the authority referred to." G. S. c. 124, §§ 1, 5.1 119. Magistrate's Refusal to order Examination. — Evidence. — " Where it was for the debtor to submit himself to examination, if he would perform the con- dition of his recognizance, there was no duty incum- bent on the magistrate to order him to do so." Hence the magistrate's refusal to order the examina- tion of a debtor who appeared, but objected to being examined, was immaterial to evidence of a breach of a recognizance under G. S. c. 124, § 10.^ Record. Pleading. Amendment. 120. Memorandum or Record not returnable. ■ — A memorandum of a recognizance by a judgment debt- or, under St. 1855, c. 444, did not need to be " re- turned to, nor recorded in any court of record," to make it valid.^ The law remains so under P. S. c. 162, §§ 28, 36. 121. Record or Memorandum. — Not returnable. — Kept by Magistrate. — The memorandum or "record" of a recognizance under St. 1857, c. 141, " is not re- 1 Webber v. Davis, 5 Allen, 393 (1862), Contract on Recog- nizance. 2 Simpson v. Trivett, 120 Mass. 147 (1876), Contract on Ee- cognizance. 3 Thaoher ». Williams, 14 Gray, 324 (1859), Contract on Recognizance. RECOGNIZANCES. 93 turnable, nor to be returned into any court of record, but "is to remain, for the benefit of the creditor, in the custody and possession of the magistrate by whom it was taken." ^ The law remains so under P. S. c. 162, §§ 28, 36. 122. Pleading. — Declaration. — Averment of Non- payment. — It was held that a declaration in an ac- tion on a recognizance under G. S. c. 124, need not aver that the execution had not been paid.^ 123. Amendment of Memorandum,, and Declaration. — An amendment of a certificate or memorandum of a recognizance was allowed by filing a new and cor- rected memorandum thereof, and the declaration in an action of contract on the recognizance was allowed to be amended accordingly.^ 1 Peck 0. Emery, 1 Allen, 463 (1861), Contract on Recog- nizance. 2 Webber v. Davis, 5 Allen, 393 (1862), Contract on Re- cognizance. 8 Morrill v. Norton, 116 Mass. 487 (1875), Contract on Recognizance. Note. — Recognizance. — More than Double. — Under G. S. c. 124, § 10, a recognizance was taken for more than double the amount of^the execution, and was valid. Currier v. Poor, 5 Al- len, 585 (1863), Contract on Recognizance. The law remains so under P. S. c. 162, § 28 (82). Scire Facias on Recognizance hy Mistake instead of Contract. — Judgment could not be rendered for the plaintifE on a writ of scire facias for breach of a recognizance, which was not return- able or returned to the court from which that writ issued (G. S. c. 124, § 46). Hence the writ was allowed to be amended to a writ and declaration in contract (under G. S. c. 129, §§ 34, 41), and after such amendment the plaintiff could take judgment. Sewall V. Sullivan, 108 Mass. 355 (1871), scire facias. See P. S. c. 162, §64; and c. 167, § 42. 94 STATUTES AND CASES. Recognizance. — Death of one of two Sureties. — Extension of Time for filing Motion to dismiss. — Ricker v. Gerrish, 124 Mass. 367 (1878), Contract on Recognizance. Recognizance. — Payment by Principal. — Suit pending against Surety. — Gardner v. Way, 5 AUen, 452 (1862), Contract on Recognizance. No Action on Recognizance upon Arrest on Execution after the Judgment has been reversed on Review. — Whitton v. Bicknell, 3 Allen, 472 (1862), Contract on Recognizance. Recognizance. — Amendment. — Record. — Commonwealth, v. Cheney, 108 Mass. 83 (1871), Contract. Recognizance. — Amendment. — Record. — Cook v. Berth, 108 Mass. 73 (1871), Contract on Recognizance. Recognizance does not waive Illegality of Arrest, even if Oath is taken. — Carleton v. Akron Sewer Pipe Co., 129 Mass. 40 (1880), Tort for False Imprisonment. Recognizance. — Magistrate's Non- Appearance within Hour. — Breach. — Jurisdiction. — Hills v. Jones, 122 Mass. 412 (1877), Contract on Recognizance. Recognizance. — Condition to abide. — Proper Penal Sum. — Adams v. Brown, 14 Gray, 579 (1860), Contract on Recogni- zance. Execution valid. — Obvious Error in Date. — Currier v. Bart- lett, 122 Mass. 133 (1877), Contract on Recognizance. Liability of Magistrate for Error in taJdng Recognizance. — Not liable. — Chickering v. Robinson, 3 Cush. 542 (1849), Case against Justice of the Peace; Way u. Townsend, 4 Allen, 114 (1862), Tort against Justice of Police Court. See Pratt v. Gardner, 2 Cush. 63 (1848), Case against Justice of the Peace; Van Kuran v. May, 7 Allen, 466 (1863), Contract and Tort against Magistrate; Fisher v. Deans, 107 Mass. 118 (1871), Tort for causing Unlawful Imprisonment. See also the title Recognizances in the Index. BONDS. 95 BONDS. The task undertaken in this book excludes discus- sions of the subject of Bail, which occupies a separate chapter in the Public Statutes. Many of the cases upon bonds of various kinds, which abound in the Massachusetts Reports, must be also omitted. But the following selection of cases is given partly to show the historical changes in laws affecting persons arrested or imprisoned for debt, and partly to indi- cate certain principles which are still applicable to the existing statutes. 124. Bail Bond for Ninety Days. — Obligation hy Statute and Common Law. — A bail bond executed April 23, 1857, to the creditor by a debtor im- prisoned on execution, providing for a surrender in ninety days, was held to be valid either as a statute bond or at common law.^ 125. Bail Bond, St. 1784, o. 10. — Record. — Filing with Writ. — On a scire facias against bail under St. 1784, c. 10, it was no defence for them to deny that there was any record of the defendants having be- come bail ; for although the mere fact of bail was matter of record by the officers' return, the fact that the defendants were bail was matter in pais.^ P. S. c. 163, § 6, provides that " the bond shall be returned and filed with the writ." 1 Barker v. Ryan, 1 Allen, 72 (1861), Contract on Bail Bond. 2 Bean v. Parker, 17 Mass. 591 (1822), Scire Facias against BaU. 96 STATUTES AND CASES. 126. Bail after Refusal of Poor Debtor'' s Oath, and Commitment. — A defendant arrested on mesne pro- cess had the poor debtor's oath refused him, and " upon bemg committed to jail " he was held to have a right to give bail under the clause of St. 1857, c. 141, § 21, following the word " unless." ^ But in G. S. c. 124, § 25, and in P. S. c. 162, § 43, there is a full stop after the words " in the suit in which he was arrested." 127. Bond. — Liberty of Yard. — Amount of Pen- alty. — Double the Sum. — A bond for liberty of the yard by one imprisoned on mesne process under St. 1784, c. 41, § 8, i-equiring it to be taken for double the sum for which the debtor is imprisoned, had to be for double the sum to the amount of which the officer was directed to attach. See St. 1811, c. 167 ; 1810, c. 116. The defendants moved to be heard in chancery ; but there was no jurisdiction there, and the court recommended legislation to avoid oppressive amounts. See the opinion for a suggestion of a change in the law.^ 128. Bond for Liberty of Yard. — Penalty, — Less than Statutory Sum. — A bond for the liberty of the jail yard, although not within St. 1784, because not for double the sum for which the debtor was committed, was good at common law, and it seemed that the debtor might be relieved against the penalty by a judgment for the sum for which he was imprisoned.^ 1 Wass V. Bartlett, 10 Gray, 490 (1858), Habeas Corpus. 2 Whiting V. Putnam, 17 Mass. 174 (1821), Debt on Bond. See Freeman v. Davis, 7 Mass. 200 (1810), on Statutes and Jurisdiction. 3 Clap u.. Cofran, 7 Mass. 98 (1810), Debt on Bond; Bur- roughs V. Lowder, 8 Mass. 372 (1812), although sureties not of the county. BONDS. 97 Such bonds were subject to the equitable powers of the court.^ 129. Bond for Prison Limits. — Magistrate's Ap- proval of, not essential to Validity. — A creditor took a bond for the liberty of the prison limits without getting the approbation of two justices under St. 1784, c. 41, § 8 ; and the bond was vaUd, for the statute was merely for the protection of the debtor in case the creditor oppressively refused a bond.^ 130. Bond for Prison Limits hy Surety alone. — A bond not under any statute, but in the ordinary form of a prison bond, in which the only obligee was described as " surety, " was nevertheless good at common law. No other principal was suggested in the bond.^ 131. Bond hy Sureties only, no Principal. — A bail bond under St. 1784 was executed by the sure- ties only, and not by the principal debtor, although, in the body of it, it purported to have been executed by the three ; and it was held that it was not valid against the sureties.* 132. Bond for Jail Limits. — Insane Person. — Default of Surrender. — A debtor who had given bond for jail limits was committed as a lunatic under Rev. St. c. 48, § 6, and thereby a surrender was pre- vented. His sureties were not liable.^ 1 Freeman v. Davis, 7 Mass. 200 (1810), Debt on Bond. 2 Bartlett v. Willis, 3 Mass. 85 (1807), Debt on Bond. 8 Pratt I). Gibbs, 9 Cush. 82 (1851), Debt. on Bond. See this case for cases and statutes about bail bonds. * Bean v. Parker, 17 Mass. 591 (1822), Scire Facias against Bail. See Wood v. Washburn, 2 Pick. 24 (1823), Debt on Administration Bond. 6 Fuller V. Davis, 1 Gray, 612 (1854), Contract on Bond. 7 98 STATUTES AND CASES. 133. Bond for Liberty of Yard. — After Voluntary Escape and Second Arrest consented to. — Escape. — A bond for the liberty of the yard, to a creditor by a debtor upon a second arrest by the same officer on the same execution, after an escape allowed by the officer of the debtor on the first arrest, was held valid, it not appearing that the debtor objected to the second arrest, or that the bond was caused by duress.^ 134. Bond to dissolve Attachment not affected hy Recognizance. — A bond to dissolve an attachment and a recognizance after arrest in the same action were held to be cumulative securities for the same debt, and judgments upon them were given to the creditor against the sureties ; but payment of the amount of his original judgment with interest and costs was to be in fiill for his claim in both actions.^ 135. Bond for Jail Limits. — Discharge in Insol- vency.— Surety.— The St. 1838, c. 163, § 7, pro- vided that the discharge in insolvency of a debtor should not release the sureties on his bond for the jail limits.^ 136. Bond. — Bail. — Reference. — Surety. — At- tachment. — Discharge. — A reference of the action and all demands between the parties discharged the bail in the action and dissolved an attachment ; but it seemed not if only the defendant's demands against the plaintiff were referred.* 1 Brown v. Getohell, 11 Mass. 11 (1814), Debt on Bond. 2 Moore v. Loring, 106 Mass. 455 (1871), Contract on Bond; Contract on Recognizance. s Clark «. Flagg, 11 Cush. 539 (1853), Action on Bond. ^ Bean v. Parker, 17 Mass. 591 (1822), Scire Facias. See Hill V. Hannewell, 1 Pick. 192 (1822), Action against Officer for not applying Property attached. BONDS. 99 137. Bond for Prison Limits for Ninety Days Discharge Poor Debtor's Oath on Ninety-first Day. The condition of a bond for prison limits under Rev. Sts. c. 97, § 63, was satisfied by a discharge of the debtor by a poor debtor's oath on the ninety-first day, since the surrender was not necessary before then.i See P. S. c. 162, § 28. 138. Bond on Mesne Process after Judgment. — Surrender. — Time. — A judgment debtor was sur- rendered by his bail after scire facias, and gave a bond under St. 1837, c. 198, to surrender himself on the thirtieth day, and it was held that he committed no breach by going and remaining without the prison limits until that day .2 See P. S. c. 162, § 61. 139. Bond for Ninety Days. — Time. — Surrender. — The condition of a debtor's bond to surrender himself " at the expiration of ninety days " was, according to R. S. c. 97, § 63, although not in its precise words, and was performed by a surrender on the ninety-fii'st day, for that was at such "expira- tion." 3 140. Bond for Prison Limits. — Escape. — Jail Limits changed. — Upon a debtor's bond given in 1837, in a ease the cause of action in which accrued before April 2, 1834, the sureties were held liable because the debtor committed an escape by going beyond limits applicable to cases in which the cause of action accrued before April 2, 1834, although he 1 Plummer v. Odiome, 8 Gray, 246 (1857), Contract on Bond. 2 Abbott V. Bullard, 8 Cush. 141 (1851), Debt on Bond. 8 Wiggin V. Peters, 1 Met. 127 (1840), Debt on Bond; Clark V. Flagg, 11 Cush. 539 (1853), Action on Bond. See Bigelow V. AVilson, 1 Pick. 485, (1823), Ejectment. ' ■ 100 STATUTES AND CASES. kept within limits applicable to cases in which the causes of action accrued after April 2, 1834 ; and it was not material that the limits were not set out in the bond, or that the time of the accruing of the cause of action was not noted in the execution, or that the jailer gave the debtor erroneous advice.^ 141. Bond. — Surety. — Time of Contract. — Es- cape. — Jail Limits changed. — It was held that the implied promise of a principal to indemnify a suretj-- on his bond as administrator was a contract which was made when the surety became such, and not when he paid money due bj'^the principal; and hence the R. S. c. 14, § 13, giving the jail limits at the date of the administration bond, applied when the debtor, after judgment recovered by the surety and an arrest and commitment, gave bond for the prison limits and went beyond the limits fixed by that stat- ute. Hence he committed an escape, and the sure- ties on his administration bond recovered against the sureties on his bond for the jail limits.^ 142. Bond for ^'■Exterior Bounds." — Escape. — The condition of a bond under St. 1811, c. 167, that a debtor should " not depart without the exterior bounds of the debtor's liberties," was broken by a debtor who went beyond bounds, which, by St. 1822, c. 86, had been made smaller since the making of the bond, for it was an escape.* 143. Bond. — Constitutional Law. — Legislation confirming Limits fixed hy the Sessions. — Escape. — The St. 1808, c. 92, confirming the boundaries of jail 1 Farley v. Randall, 22 Pick. 146 (1839), Debt on Bond. '^ Appleton V. Bascom, 3 Met. 169 (1841), Debt on Bond. 8 Reed v. FuUum, 2 Pick. 158 (1824), Debt on Bond. BONDS. 101 yards fixed by the court of sessions, was constitu- tional, and hence an obligee on a bond for the limits did not commit an escape.^ 144. Bond for Prison Limits. — Waiver. — Adjourn- ments. — Penalty. — A creditor who had taken a debtor's bond to surrender himself at the expiration of ninety days did not waive that condition by con- senting to adjournments of an examination for the oath until after that time had elapsed. And under Rev. St. c. 97, § 68, the creditor could recover the whole amount of the original judgment with interest and costs .2 145. Bond for Prison Limits. — Arrest after Debtor offered Property. — A bond for the liberty of the prison limits was not invalidated by the fact that the debtor offered to the officer property enough to satisfy the execution, for by precedent and by statute (Rev. St. c. 97, § 12) the officer had a choice, the writs being in the alternative, and the arrest was legal.3 See P. S. c. 171, § 28. 146. Bond for Prison Limits. — Proof of Breach. — In an action on a bond for the liberty of the prison limits, the plaintiff had to prove the breach ; the bond not being even prirna facie evidence of a breach.* 147. Bond for Jail Limits. — New Promise. — Judg- ment on old Contract. — Escape. — A new promise, removing the bar of the Statute of Limitations and reviving an old contract, also had the effect of making • Walter v. Bacon, 8 Mass. 468 (1812), Debt on Bond. 2 Burnett v. Small, 7 Gray, 548 (1856), Contract on Bond. ^ Dooley v. Cotton, 3 Gray, 496 (1855), Contract on Bond. * Thornton v. Adams, 11 Gray, 391 (1858), Contract on Bond. See also Blake v. Mahan, 2 AUen, 75 (1861), Contract on Recognizance. 102 STATUTES AND CASES. the judgment in the suit a judgment on the old con- tract, and hence the same jail limits which applied to the old contract determined an escape under Rev. St. c. 14, § 14.1 148. Bond. — Jail. — Synonymous with Jail Limits. — The statutory words, to be " conveyed to jail " and "there kept," did not prevent giving "a bond for the prison limits," the laws allowing which were not "inconsistent" with Acts of 1855, c. 444, §§ 7, I6.2 The jail included its " limits." 1 Ilsley V. Jewett, 3 Met. 439 (1S41), Debt on Bond. 2 Brown v. Bavtlett, 5 Gray, 4C1 (1855), Habeas Corpus. See Jenkins i'. Newell, 9 Met. 303 (1845), Debt on Bond. Note. — Among other cases see the following: — Bond. — Prison Limits. — Time of Contract. — Appleton v. Bascom, 3 Met. 169 (1811), Debt on Bond. Bond hy Third Party. — 'S^s.tt v. Gibbs, 9 Gush. 86 (1851). " Sureties," but signed by Principal and one Surety. — Danker V. Atwood, 119 Mass. 141 (1875). Names mistaken. — Colburn v. Downes, 10 Mass. 20 (1813). Bond. — Liberty of Yard. — Ex Post Facto Laws. — Locke v. Dane, 9 Mass. 360 (1812), Debt on Bond. Bond. — Action by Assignee in Insolvency of Obligee. — Weth- erbee v. Martin, 10 Gray, 245 (1857), Contract. Bond. — Death of Principal. — Bradford v. Earle, 4 Pick. 120 (1826), Scire Facias. Bail Bond. — Wife of Principal as one Surety. — Yale v. Wheelock, 109 Mass. 502 (1872), Scire Facias. Bail not discharged by Amendment of Writ. — Knight v. Dorr, 19 Pick. 48, Scire Facias. Bond to Deputy Sheriff void. — Statute. — Conant v. Sheldon, 4 Gray, 300 (1855), Scire Facias. Whole Penalty. — Smith v. Stockbridge, 9 Mass. 221 (1812). Bond to Sheriff. — Smith v. Adams, 12 Met. 564 (1847). Action against Sheriff for taking Insufficient Bail. — Sparhawk 9. Bartlett, 2 Mass. 188 (1806), Case. Cases andstatutes cited. See also the titles Bail, Bonds, in the Index; and for the law of Bail, see List of Books, p. 394. AFFIDAVITS AND CEKTIFICATES. 103 AFFIDAVITS AND CERTIFICATES. 149. Questions concerning the affidavits by plain- tiffs and judgment creditors, or persons in their behalf, and the certificates by magistrates, which are required by the poor debtor statutes, the necessity for them being created by those statutes, of course involve a construction of the particular statutes by which their sufficiency or insufficiency is determined. Conse- quently, in stating the following points, the statutes concerning each are referred to, and must of course be read to render this chapter intelligible. Apfidatits upon Mesne Process. 150. Affidavit. — Alteration of Writ. — Arrest. — The date and return-day of a writ in contract were altered to later dates after an affidavit had been made and indorsed upon it, to show compliance with Rev. St. c. 90, § 111 ; and the arrest thereupon was there- fore illegal.^ 151. Affidavit. — Clauses omitted. — Arrest. — Under St. 1857, c. 141, § IT (differing from St. 1855, c. 444, § 11), an arrest on mesne process in contract was ille- gal when made under an affidavit omitting the words, " which he does not intend to apply to the plaintiff's claim ; " or omitting the words, " has reason to believe the defendant has property." ^ 1 Amadon ». Mann, 3 Gray, 467 (1855), Habeas Corpus. 2 Stone V. Carter, 13 Gray, 575 (1859), Habeas Corpus. 104 STATUTES AND CASES. 152. Affidavit. — Defendant instead of Defendants. — Under G. S. c. 124, § 1, an affidavit on mesne pro- cess in contract against " the defendant," in a writ naming two defendants, did not suffice for the arrest of either of them.i 153. Affidavit. — Tort. — Mesne Process. — Under G. S. 0. 124, § 2, an affidavit upon mesne process in tort, stating that " I believe, and have reason to be- lieve, that he intends to leave the State, so that exe- cution, if obtained, cannot be served upon him," did not satisfy the statutory clause " that the defendant is likely to remove beyond the jurisdiction of the court to which the writ is returnable." Hence an arrest under it was illegal. Hence the action was rightly dismissed, the writ having been served by the void arrest.^ Cektificates befoke Aerest. 154. Certificate of Oath of Plaintiff when Certificate was not required.— Affidavit. — After the oath required by St. 1834, c. 167, had been taken, an arrest upon mesne process was legal without any certificate or indorsement upon the writ; and therefore a certificate or indorsement insufficient to show all the essential facts, but saying "that he made oath as the law requires, to authorize the arrest of the defendant," did not invalidate the arrest, and its defects could be supplied by other evidence.^ Rev. St. c. 90, § 111, ' Hitchcock V. Baker, 2 Allen, 431 (1861), Tort against Deputy Sheriff. Compare Abbott v. Tucker, 4 Allen, 72, below in this chapter under Affidavits upon Execution (162). 2 Wood V. Melius, 8 Allen, 434 (1864). Tort. « March v. Bancroft, 1 Met. 497 (1840), Trespass upon the Case against Deputy Sherifi for not taking Sufficient Bail. AFriDAVITS AND CKKTIFICATES. 105 did not require any such certificate or indorsement.^ Is a certificate necessary under P. S. c. 162, § 17, before an arrest under P. S. c. 162, § 25, and if so, what should such a certificate state ? See chapter on Juris- diction, (4). 155. Certificate of Magistrate' s Satisfaction. — In a certificate under G. S. c. 124, § 5, the magistrate used these words : " And I certify that, after due hearing, I am satisfied that there is reasonable cause to be- lieve," and they were held good, the objection to them being held to be frivolous.^ That form is still used in the common certificates under P. S. c. 162, §17. 156. Certificate. — Satisfactory Cause. — Arrest. — Recognizance. — Under G. S. c. 124, § 5, it was not sufficient for the magistrate's certificate to state that, '■'■Satisfactory cause having been shown, I hereby au- thorize the arrest of the said debtor if his arrest is authorized by law." The statute requires " the cer- tificate of the magistrate that he is satisfied there is reasonable cause to believe " the charge. Hence the arrest and recognizance were void.^ The law remains so under P. S. c. 162, § 17. This decision seems to the author to be an argument in favor of the view, advocated in this book, that the magistrate under P. S. c. 162, § 17, does not "authorize" the arrest ; but merely satisfies the statutory restraint of arrest (158). 157. Certificate of Magistrate. — Initials. — Signa- ture. — The signature upon a certificate under G. S. 1 Haynes v. Saunders, 11 Cush. 537 (1853), Contract. 2 Webber u. Davis, 5 Allen, 393 (1862), Contract on Eeoog- nizance. 8 Smith V. Bean, 130 Mass. 298 (1881), Contract on Recogni- zance. 106 STATUTES AND CASES. c. 124, § 5, of a magistrate's surname, with the initials of his Christian names, was held to be sufficient.^ The law remains so under P. S. c. 162, § 17. 158. Certificate need not in Terms authorize Arreit in Bay-time. — After an arrest in the day-time upon the first charge under one of the ordinary certificates, under G. S. c. 124, § 5, it was objected that the magis- trate did not " authorize " the arrest ; but the court held that the certificate of the magistrate, that he is satisfied there is reasonable cause to believe that the charge made in the affidavit is true, is " independent of the clause which follows it, and authorizes an arrest in the daytime" (156).^ 159. Certificate. — Affidavit. — Magistrate. — Attor- ney of Creditor. — Arrest. — The nlagistrate who wrote the affidavit and made the certificate under G. S. c. 124, § 5, was at the time attorne)' for the creditor, hence the subsequent arrest and recognizance were void.^ 160. Certificate hy Magistrate who is Attorney of Record. — Officer's Liability. — Arrest. — Although the magistrate issuing a certificate under G. S. c. 124, § 5, cl. 1, was the creditor's attorney of record, this did not appear upon the precept and was not known to the officer. And he was held to be not liable for the arrest.* 1 Webber v. Davis, 5 Allen, 393 (1862), Contract on Recog- nizance. 2 Manuel v. Bates, 104 Mass. 334 (1870), Contract on Re- cognizance. 8 McGregor v. Crane, 98 Mass. 530 (1868), Contract on Recognizance. * Chase v. Ingalls, 97 Mass. 524 (1867), Tort against Deputy Sheriff for Illegal Arrest, and against Keeper of Jail for UlegaL Imprisonment. AFFIDAVITS AND CEBTIFICATES. 107 Affidavits upon Execution. 161. Affidavit. — '^aood Reason."— Under St. 1857, c. 141, and before St. 1860, c. 215, it was not necessary that an affidavit for arrest upon execution sliould contain the words "good reason to believe." ^ 162. Affidavit— "Ras" for ''Save." —Distribu- tive. — An affidavit for arrest under St. 1857, c. 141, upon an execution, named two defendants, but used the singular verb as follows : " has property, &c., which he does not intend to apply," &c. It was held that this was to be construed distributively.^ 163. Affidavit. — Execution for Costs. — Arrest. — An execution, for possession recovered in a real action to foreclose a mortgage, and for a certain amount as costs, recited for " costs and damages." It was held that, since the recital did not give to the costs the nature of damages, the execution did not fall under the restraint of G. S. c. 124, § 5, and also that the case was analogous to an action of tort excepted by that section. Hence no affidavit was required before ar- rest upon such execution.^ 164. The following reason for the distinction be- tween the provisions of G. S. c. 124, § 5, concerning arrests on contract and tort, was suggested : " The reason for this distinction may be found in the fact 1 Abbot V. Tucker, 4 Allen, 72 (1862), Contract on Recog- nizance. 2 Abbott ». Tucker, 4 Allen, 72 (1862), Contract on Recog- nizance. Compare Hitchcock v. Baker, 2 Allen, 4-31, above in this chapter, under Affidavits upon Mesne Process (152). s Hildreth v. Brigham, 12 Allen, 71 (1866), Tort against Deputy Sheriff for Assault and False Imprisonment. 108 STATUTES AND CASES. that the relation of debtor and creditor is in most cases a voluntary one as to both parties, and the power of the creditor to take the body of the debtor in satisfaction in such cases may with much more reason be curtailed or taken away than in those cases where the plaintiff is a sufferer from the wrongful act or trespass of the defendant." ^ See P. S. c. 162, §17. 165. Affidavit. — Execution. — Alimony. — Arrest. — " Debt or Damages." — Divorce. — " Civil Action." — An execution upon a decree for alimony did not require an affidavit and certificate under G. S. c. 124, § 5, for the arrest of the debtor.^ Would such an execution now need an affidavit and certificate under P. S. c. 162, § 17, before an ar- rest could be made upon it ? The words "for debt or damages," which were in G. S. c. 124, § 5, are omitted in the corresponding section, P. S. c. 162, § 17. And in view of this omission the reason of the court is pertinent. It held that no certificate was necessary because the execution for alimony was not "for debt or dam- ages," although " perhaps the term ' civil action ' might be held to embrace suits for divorce." Does the present § 17 include a suit for divorce as " a civil action."? Certificates after Arrest. 166. — Certificate hy Magistrate concerning Officer's Return. — The certificate of two magistrates under 1 Colt, J., in Hildreth ». Brigham, 12 Allen, 71, 72, (1866), Tort against Deputy SherifE. 2 Chase v. Ingalls, 97 Mass. 524 (1867), Tort against Sheriff and Jailer. AFFIDAVITS AND CEETIFICATES. 109 St. 1787, c. 29, that an officer's return of a notifica- tion served by him was conformable to law, was held to be conclusive of that fact, " for it was made by the statute the special duty of the magistrates to examine the return," p. 406.i 167. — Certificate of Magistrate not conclusive. — Notice. — The certificate of two justices to a poor debtor's oath, under R. S. c. 98, § 10, was held not to be conclusive of the regularity of the notice recited in it.2 The law remains the same as to certificates under P. S. c. 162, § 40. 168. Certificate. -^ Description of Magistrate. — Dis- charge. — Record. — The form of a certificate of dis- charge by two justices of the peace and of the quorum, according to R. S. c. 98, § 10, was suffi- cient without further description of the magistrates, and no further record of the proceedings was neces- sary.3 169. — Certificate ly Justice, not hy Court. — Ar- rest. — Surplusage. — Officer'' s Return. — A certificate, signed by a magistrate as " Justice First District Court, E. W.," and containing this statement, " says he does not desire to take the oath for the relief of poor debtors, and fails to procure surety to the satis- faction of said court" did not show any error in the proceedings by the reference to " said court," for the magistrate himfeelf had jurisdiction under G. S. c. 124, § 9, and St. 1872, c. 200, § 1, and it was pre- sumed that he acted under that authority, and that the " said court" was not in session at the time, not- 1 Haskell v. Haven, 3 Pick. 404 (1826), Debt on Bond. 2 Baker v. Moffat, 7 Cush. 259 (1851), Debt on Bond. ' Butler V. Fairbanks, 4 Gray, 531 (1855) , Contract on Bond. 110 STATUTES AND CASES. withstanding the form of the certificate. The court, Ames, J., said, " Upon the assumption that a proper certificate was necessary to the officer's justification (which we need not decide), we find no error in his proceedings.! Xhe court also decided that " the officer's return that the debtor did not desire to take the poor debtor's oath furnishes a full justification for his commitment to prison." The additional aver- ment in the return about " surety " was held to be surplusage.^ ^ See Underwood v. Clements, 16 Gray, 169, in the chapter on Jurisdiction. " Hyde v. Malley, 121 Mass. 388 (1876), Tort for False Imprisonment. Note. — 169 supports 317. See note after 322. See also the following cases : — Affidavit. — Tort. — Action. — Tort lay for causing arrest on mesne process in tort without the affidavit required by St. 1854, 0. 63. Cody w. Adams, 7 Gray, 59 (1856), Tort. Declaration containing Counts in Contract and Tort. — Effect upon Affidavit. — Hulett v. Pixley, 97 Mass. 29 (1867), Contract. Magistrate taking Affidavit Plaintiffs Attorney without Officer's Knowledge. — Underwood v. Robinson, 106 Mass. 296 (1871), Tort for False Imprisonment. See also the titles Affidavits and Certificates in the Index. APPLICATIONS TO JAILERS AND MAGISTKATBS. Ill APPLICATIONS TO JAILERS AND MAGIS- TRATES. 170. Applications for Poor Debtor's Oath to Jailers and Magistrates under Former Statutes. — Questions concerning these applications either as a part of the preliminary proceedings required , by statutes and hence necessary to give magistrates jurisdiction, or as attempts to get privileges not allowed by statute, have arisen in actions of debt on bonds for the liberty of the jail limits, and on petitions for writs of habeas corpus, and a writ of prohibition. No Address to Jailer to serve Notice. — A judgment debtor's application to a jailer under R. S. c. 98, § 1, did not need to describe his ofScial station accu- rately, if the address was clearly to him.^ See P. S. 0. 162, § 54. 171. Application to Jailer indispensable. — The ap- plication to the jailer required by R. S. c. 98, § 1, was held to be indispensable, notwithstanding the fact that the debtor appHed directly to the magistrate. St. 1844, 0. 154, § 10, was held not to affect this.^ 172. Application to Jailer. — Custody. — A judg- ment debtor, out on a bond for the liberty of the jail limits, was held to have satisfied the St. 1842, c. 56, § 1, by giving notice to the jailer as " the officer hav- 1 Davis V. Putnam, 5 Gray, 321 (1855), Contract on Bond. 2 Bruce v. Keogh, 7 Cash. 536 (1851), Debt on a Bond; Ste- vens V. Edwards, 12 Cush. 79 (1853), Debt on a Bond, cites Proctor V. Wood, Middlesex (1852). 112 STATUTES AND CASES. ing him in custody ; " for the debtor continued to be his prisoner notwithstanding the liberty of the jail limits.-^ 173. Application to Jailer for Poor Debtor's Oath. — The representation to the jailer under R. S. c. 98, § l,by a prisoner wishing to take the poor debtor's oath, was held to require some statement concerning the debtor's inability to pay the debt.^ Even the presence of the creditor's attorney, although it might cure want of notice to the creditor, did not supply the want of jurisdiction which depended upon the sufficiency of the application to the jailer.^ 174. Application. — Militia Act. — Penalty. — The fact that the execution was issued for a penalty under the Militia Act, St. 1809, c. 108, § 35, did not pre- clude the debtor from the right to the poor debtor's oath under St. 1787, c. 29.* 175. Application. — Right to Oath. — Bastardy Act. — Time. — It seems that both terms — the ninety days of imprisonment and the thirty days of notice — were required to elapse under the Bastardy Act, G. S. c. 72, § 11, in order that the prisoner thereunder should have the benefit of the poor debtor law.® See P. S. c. 85, § 20. 1 Jenkins v. Newell, 9 Met. 303 (1845), Debt on a Bond. See Brown v. Bartlett, 5 Gray, 461 (1855), Habeas Corpus. 2 Webster v. French, 11 Cush. 304 (1853), Contract on Bond. ' Foyes V. Cobum, 11 Cush. 307 (1853). See note to Simpson V. Bowker, 11 Cush. 306 (1853), Contract on Bond; Webster V. French, 11 Cush. 304 (1853). * Dyer v. Hunnewell, 12 Mass. 271 (1815), Debt against Sheriff. 5 Doherty v. Clark, 3 Allen, 151 (1861), Habeas Corpus. APPLICATIONS TO JAILEES AND MAGISTRATES. 113 176. Application. — Bastardy Act. — Right to Oath. — Orders. — It seems that, to entitle the prisoner to the benefit of the poor debtor laws, the term of impris- onment, under the Bastardy Act, G. S. c. 72, § 11, had to be under an " order " of the Superior Court for failure to comply, and not any order of the magistrate or court to which the original warrant was returnable. See P. S. c. 85, § 20.i 1 Doherty v. Clark, 3 Allen, 151 (1861), Habeas Corpus. Note. — See the chapter on the Application of a Judgment Creditor before the Issue of Notice to a Judgment Debtor, 356- 367 ; and the title Applications in the Index. 114 STATUTES AND CASES. NOTICE. 177. Origin of the Cases upon Notice. — Most of the cases in the Massachusetts Reports concerning the form, interpretation, and sufficiency of notice under the successive poor debtor statutes, have been con- cerning notices issued to judgment creditors at the appHcation of judgment debtors who, having been arrested on execution and released on recognizance or on bonds for the liberty of the prison limits, applied to take the oath for the relief of poor debt- ors. Upon such application, notices more or less accurate and complete have been issued by magis- trates, served vi^ith more or less correctness, and returned with more or less perfection by officers. The judgment creditors have not appeared in response to the notice, sometimes, probably, having stayed away by the advice of counsel in order to test it. Then actions of debt were brought by the creditors against the debtors and their sureties on the recognizances or bonds, and, upon their setting up their discharge in defence, the question constantly arose whether the discharge was legal. Since, as has been shown in the chapter on Jurisdiction, the magistrate's certificate of discharge was not conclusive of the regularity of all previous proceedings, the judgment creditor denied the sufficiency of whatever notice the judgment debtor had relied on for his right to a discharge, and which the magistrate had relied on for his jurisdiction in the NOTICE. 115 case. Thus the notices have come before the court for its criticism. The principle upon which the court has construed the statutes requiring notice in poor debtor's cases is, that the object of the statutes is sim- ply to cause one party to give the other part};- such information of the beginning of a proceeding as is necessary to warn him to protect his rights. When this has been accomplished in ways that substantially comply with the statutes without unreasonable errors or omissions, the court has held the notices to be valid. 178. Notice. — Ministerial Act by Magistrate. — Ap- plication hy Jailer to Magistrate. — The statute of 1787, c. 29, was satisfied by a notice to the creditor which had been signed in blank by a magistrate within his county, although he was absent from his county when it was filled out and issued by the jailer. The issue of notice was a ministerial act of the magis- trate.^ Neoessitt op Notice. 179. Notice. — Oondition for, in Recognizance. — Al- though G. S. c. 124, § 17, does not mention giving notice to the creditor, it was held that the recogni- zance properly contained such a condition, and that §§12 and 13 of that chapter were to be construed to- gether with § 17. Consequently notice was indispen- sable. Merrick, J., said (p. 290), " The whole statute is to be construed together." ^ The law remains so under P. S. c. 162, §§ 36, 31, 32. 1 Haskell v. Hayen, 3 Pick. 404 (1826), Debt on Bond. 2 WhittJer v. Way, 6 Allen, 288 (1863), Contract on Kecog- nizance. 116 STATUTES AND CASES. 180. Notice. — Recognizance omitting this Condition. — Notice to the creditor duly served is necessary after a recognizance under G. S. c. 124, § 17, although that condition is not expressed in the recognizance, and although a time and place are fixed for the examina- tion, and the debtor appears then and there. In this case the magistrate declined to act, and the debtor waited an hour and then left the State. It was held to be a breach.i The law remains so under P. S. c. 162, §§ 36, 31, 32. 181. Notice. — Recognizance. — Waiver. — An agree- ment by a judgment creditor and the debtor, within the time limited by a recognizance, that " the hearing may be postponed " until after the time so limited, is not a waiver by the creditor of the notice required by the recognizance. Hence the surety was held liable. The law remains so under P. S. e. 162, § 28.^ 182. Notice. — Acceptance or Waiver by Officer. — Without authority from the judgment creditor, the officer who made the arrest cannot accept service of notice or waive the want of service by a proper officer, although proper service upon him is one of the cred- itor's rights, under G. S. c. 124, § 10.3 xhe law re- mains so under P. S. c. 162, § 32. Proof of Notice. 183. Proof. — Return Conclusive. — Error in Copy. — Jurisdiction. — If an original notice is correct, and 1 Gilmore v. Edmunds, 9 Allen, 379 (1884) Contract on Recognizance. .2 Barber v. Floyd, 109 Mass. 61 (1871), Contract on Recog- nizance. » Cutler V. Boyd, 124 Mass. 181 (1878), Contract on Recog- nizance. KOTICE. 117 the officer's return states that he served a true copj', it is immaterial to the jurisdiction that the copy con- tained such an error as the wrong middle initial of the name of the party entitled to notice. ^ 184. Proof. — Amending Officer's Return. — As be- tween the parties, sufficient notice is conclusively proved by the officer's return to that effect ; and after a discharge thereupon the officer cannot amend that return.^ Inteepketation and Construction of Notice. 185. Notice. — Preamble.— ^Construction. — The whole of a notice, including any preliminary recital, is to be construed together, according to the common rule for the construction of instruments.^ Statement op what is applied fok. 186. Notice. — Application to Magistrate. — Poor Debtor's Oath. — Technicality. — Neither notices to parties, nor representations, nor applications to officers and magistrates for the privileges of the poor debtor law need be technically accurate or complete if they substantially comply with the law, and their mean- ing is unmistakably clear ; for instance, a judgment debtor's application to a jailer, under Rev. St. c. 98, § 1, and description of a statute in a notice to the judgment creditor,* and a description of the oath de- sired to be taken, 5 and a jailer's demand of security 1 Eastman v. Perkins, 10 Cash. 249 (1852), Debt on Bond. ^ Davis p. Putnam, 5 Gray, 321 (1855), Contract on Bond. 3 Dunham v. Burlingame, 2 Met. 271 (1841), Debt on Bond. * Bussey v. Briggs, 2 Met. 132 (1840), Debt on Bond; Davis V. Putnam, 5 Gray, 321 (1855), Contract on Bond. 6 Davis V. Putnam, 5 Gray, 321 (1855). 118 STATUTES AND CASES. from a creditor under St. 1821, c. 22.^ But the rep- resentation to the jailer, under Rev. St. c. 98, § 1, needed to contain some statement concerning inability to pay .2 Description op the Case. 187. Notice. — Inaccurate Description of Statute. — Verbal inaccuracy in the description of a statute referred to does not vitiate a notice which cannot mislead the party entitled to it.^ 188. Notice. — Unnecessary Details. — A notice need not contain such details as a description of the cause of action, or the amount named in a writ or an execution.* 189. Notice. — Slight Inaccuracy in Amount. — A notice is not vitiated by a slight inaccuracy in the recital of an amount ; for instance, adding twenty- five cents to the cost of the execution ; ® or the omis- sion of interest.^ 190. Notice. — Error in , Description of Execution. — A notice which recites that the party at whose instance it is issued was arrested on an execution issued in a certain term, when the arrest was in fact on an alias execution issued after that term, but on a judgment rendered during it, is not thereby vitiated.^ 1 Blood V. Austin, 3 Pick. 259 (1825), Debt against Sheriff for an Escape. Se? P. S. c. 162, § 45. 2 Webster v. French, 11 Cush. 304 (1853), Action on Bond. s Bussey v. Briggs, 2 Met. 132 (1840), Debt on Bond, not- withstanding Slasson v. Brown, 20 Pick. 436 (1838), Debt on Bond. * Davis V. Putnam, 5 Gray, 321 (1855), Contract on Bond. 6 Leach v. Hill, 3 Met. 173 (1841), Debt on Bond. « Green v. Wilbur, 10 Cush. 439 (1852), Debt on Bond. ' Green v. Wilbur, 10 Cush. 439 (1852), Debt on Bond. KOTICE. 119 But a debtor's notice to a creditor, giving the wrong town and county in describing the court which issued the execution, is insufficient.^ 191. Notice. — Several Executions. — After arrests and recognizances upon several executions in favor of the same creditor, the debtor's notice, if but one is sent, must specify which execution it is with refer- ence to which he seeks a discharge. This is to enable the creditor to have the right execution and the officer ready in case the oath is refused to the debtor.^ But if as many notices are sent as there are execu- tions, none of the notices need specify any execution, because the creditor thereby is informed that all the executions are referred to.^ 192. Notice. — Error in Description of Writ. — " Execution " instead of " Mesne Process." — A magis- trate's notice to a creditor, reciting that the debtor " arrested on execution in your favor desires to take the oath for the relief of poor debtors," and appoint- ing the time and place for his examination, was held to be sufficient, although the debtor had been arrested on m isfied that he did not when arrested, and does not at the time of examination, intend to leave the State ; and I have refused to discharge ^ him from arrest. 1 Henshaw v. Cotton, 127 Mass. 60 (1879), Writ of Prohibi- tion. 2 See 397, note 1, upon the use of the word " discharge " in § 37. Form 11 may be altered to serve instead of Form 10. 244 PEACTICB. And said failed to recognize or to give bail in any manner.^ Fee, f 1. Master in Chancery. Although P. S. c. 162, § 43, uses the word " and " where it is italicized in the following quotation from that section, " If on his examination he does not swear to the satisfaction of the magistrate that he does not intend to leave the State, and the oath for the relief of poor debtors is refused him," it is the practice for the magistrate to issue a certificate such as that in Form 11. The certificate may be issued accord- ing to the following construction of § 43. When there has been no application for the poor debtor's oath, and the only examination has been concerning the intention to leave the State, the proper construc- tion of § 43 seems to be that the words in its second line, " does not desire to take an oath," apply not only to the case where the defendant does not desire to take either oath, but also to the case just sup- posed, where the defendant desired to take the oath that he did not intend to leave the State, but did not desire to take the poor debtor's oath. Hence the words in § 43, "the defendant shall be conveyed to jail," apply to him also. 399. After Defendant's Failure to satisfy Magis- trate concerning Intention to leave State. — The de- fendant, having thus failed to satisfy the magistrate, may then, to avoid going to jail,^ either give bail (P. S. c. 163, § 1), or recognize under P. S. c. 162, § 28, as above described (Form 5), for a preceding 1 This is erased when the fact is otherwise. AEKEST ON MESNE PBOCESS. 245 stage in this supposed case, and be released on bail or recognizance, or may declare before the magis- trate immediately his desire to take the oath for the relief of poor debtors, and recognize under P. S. c. 162, § 36, — " Sect. 36. Pending the examination, and at any time after the defendant or debtor is earned before a magis- trate, the magistrate may accept his recognizance with surety or sureties in a sum not less than double the amount of the execution, or of the ad damnum in the writ if he is arrested on mesne process, that he will appear at the time fixed for his examination, and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon. No recognizance under this chapter, except in case of appeal under section fifty, shall be accepted at any time after the oath has been once refused to the debtor." Or if there is time, and he can persuade the officer to continue to keep him in custody, he may manage to keep out of jail during the time required for notice of the examination for the poor debtor's oath and the examination itself. If the plaintiff wiU not waive the notice required by §§ 31, 32, the defendant may get such a notice, which is the same in form as the notice in Form 6, except that the oath which this latter notice says he desires to take is the oath for the relief of poor debtors. (426, 427, 429 et seq.) There is rarely time, however, for such a second examination to be begun upon the same day. It is merely mentioned here as one of the possible resources of the defendant, in the event of rapid 246 PBACTICB. proceedings during one day. The examination con- eerning the oath for the relief of poor debtors will be considered later. When the defendant does not take advantage of any of these resources, or fails to satisfy the magis- trate before whom he is examined, P. S. c. 162, § 43, applies. " Sect. 43. If the defendant, when arrested on mesne process and carried before the magistrate, does not desire to take an oath, or fails to recognize to the satisfaction of the magistrate as before provided, and does not give bail, or if on his examination he does not swear to the satisfaction of the magistrate that he does not intend to leave the State, and the oath for the relief of poor debtors is refused him, and he does not give bail, the magistrate shall make a certificate thereof, and the defendant shall be conveyed to jail, and there kept until final judgment in the suit in which he was arrested. If the final judg- ment is against him, he shall be held for thirty days thereafter, in order that he may be taken on execution ; unless (if the oath for the relief of poor debtors has not been refused him) he recognizes as aforesaid or gives bail or bond as provided in section fifty-eight, or takes the oath for the relief of poor debtors or an oath that he does not intend to leave the State, or is discharged by the plaintiff." Then the officer having the defendant in custody takes him to jail and delivers to the jailer the defend- ant's body, together with a copy, attested by the officer, of the writ and the papers annexed to it, including a copy of his own return, which he writes upon the writ. Then the officer leaves the defendant in jail, and deposits the writ with the papers annexed to it with the court whence it issued. AKEEST ON MESNE PROCESS. 247 ARREST ON MESNE PROCESS IN ACTIONS OF TORT. 400. P. S. c. 162, § 2, is as foUows : — " Sect. 2. No person shall be arrested on mesne pro- cess in an action of tort unless the plaintiff or some per- son in his behalf makes oath to the satisfaction of some magistrate named in the preceding section that he be- lieves and has reason to believe that he has a good cause of action against the defendant, that he has reasonable expectation of recovering a sum equal, at least, to one third the damages claimed in the writ, and that he believes and has reason to believe that the defendant intends to leave the State, so that if execution be ob- tained it cannot be served upon him ; and such affidavit, with a certificate of the magistrate that he is satisfied the same is true, shall be annexed to the writ." The proceedings are the same as those described for arrest on mesne process in actions of contract, excepting the different facts required by § 2 to be proved, and the consequent difference in the affidavit and certificate. The following is the common form : — FOEM 12. Customary Form for an Affidavit and Certificate for Arrest on Mesne Process in Tort. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss. 1 a. d. 18 — . I, , the plaintiffi in the annexed writ, on oath de- clare, that I believe and have reason to believe that 1 Or, in behalf of the plaintiff. 248 PRACTICE. -ha a good cause of action against the defendant, -, named in said writ, that ha reasonable expecta- tion of recovering a sum equal, at least, to one third the damages claimed in the writ; and that I believe and have reason to believe that the defendant intends to leave the State, so that if execution be obtained it cannot be served upon him. COMMONWEALTH OP MASSACHUSETTS. Suffolk, ss. , a. d. 18 — . Personally appeared the above-named , and made oath that the above affidavit, by him subscribed, is true ; and I certify that I am satisfied the same is true. And, satisfactory cause having been shown, I authorize the arrest of the said defendant to be made after sunset.-' Master in Chancery. ^ For the pretension to " authorize " anything except the obedience to the writ after sunset, see (4 and end of 367) and the title Certificates in the Index. It is customary to add the words "if his arrest is authorized by law;" but they are surplusage. EXAMESTATION OP JUDGMENT DBBTOK. 249 BEFOEE AND AFTER AREEST ON EXECUTION. JUEISDICTION. 401. Suppose that a judgment creditor has such an execution as enables him to prepare, under P. S. c. 162, § 17, to arrest the judgment debtor upon it, and that his information about the debtor is such that he can only make the first charge under that section. , " Sect. 17. Except as provided in sections five to six- teen inclusive, and except in actions of tort, no person shall be arrested on an execution in a civil action, unless the judgment creditor or some person in his behalf, after execution is issued amounting to twenty dollars exclusive of all costs which make part of said judgment, whether the same have accrued in the last action or in any former action on the same original cause of action, and while so much as that amount remains uncollected, makes affidavit, and proves to the satisfaction of some magistrate named in section one, that he believes and has good reason to believe, — " First, That the debtor has property not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintiff's claim ; or, " Second, That since the debt was contracted or the cause of action accrued, the debtor has fraudulently con- veyed, concealed, or otherwise disposed of some part of his estate, with a design to secure the same to his own use or defraud his creditors ; or, 250 PEACTICE. « Third, That, since the debt was contracted or the cause of action accrued, the debtor has hazarded and paid money or other property to the value of one hundred dollars or more in some kind of gaming prohibited by the law's of this commonwealth ; or, " Fourth, That since the debt was contracted the debtor has wilfully expended and misused his goods or estate, or some part thereof, for the purpose of enabling himself to swear that h'e has not any estate to the amount of twenty dollars, except such as is exempt from being taken on execution; or, " Fifth, If the action was founded on contract, that the debtor contracted the debt with an intention not to pay the same ; or, " Sixth, That the debtor is an attorney at law ; that the debt upon which the judgment on which the execu- tion issued was recovered was for money collected by the debtor for the creditor, and that said attorney unreason- ably neglects to pay the same. " And such affidavit, and the certificate of the magis- trate that he is satisfied there is reasonable cause to believe the charges therein contained, or some one of them, are true, shall be annexed to the execution. If the judgment debtor lives or has his usual place of business in any county in this state, the application for a certificate authorizing his arrest shall be made in that county; otherwise it may be made in any county." In such a case the debtor is protected, at the start, not only by § 17, but also by § 18. The jurisdiction of the magistrate to receive the " application " (§ 18), and to issue notice (§§ 18, 19), is fixed by the first paragraph of § 17, referring to the magistrates named in § 1; the last sentence of § 17, referring to the debtor's residence and place of business ; and the last EXAMINATION OF JUDGMENT DEBTOR. 251 sentence in § 18, restricting justices of the peace to the issue of notices. " Sect. 18. A magistrate to whom application is made for a certificate authorizing arrest on execution upon the first charge specified in the preceding section shall, unless it appears that the judgment debtor intends to leave the State, before granting the same, issue notice to the debtor to appear at a time and place therein fixed, and submit to •an examination touching his estate. Such notipe may be served by an officer authorized to serve said execution, by dehvering an attested copy of the notice to the debtor, or leaving the same at his last and usual place of abode, allowing not less than three days before the time fixed for the examination, and at the rate of one day additional for every twenty-four miles' travel. The examination, or the time fixed therefor, may be postponed or continued from time to time at the discretion of the magistrate. The magistrates before whom such examinations may be held shall be those named in section twenty-seven. Jus- tices of the peace shall have no authority to act under this and the seven following sections, except to issue notices as therein provided returnable before some magistrate authorized to act thereon." Application. 402. The first question concerning § 18 is what is meant by an " application " in the words "applica- tion is made for a certificate authorizing arrest on execution upon the first charge." Since the statute does not expressly provide or seem necessarily to imply that the affidavit or any proof shall be given to the magistrate before the issue of the notice to the debtor, it is the convenient and common practice for the magistrates not to make any such requirement, and to issue the notice to the 252 PEACTICE. debtor as a matter of course. This is according to a reasonable construction, as is attempted to be shown in the chapter on the " Application " of a Judgment Creditor. Section 18 is substantially a part of the much discussed act of 1877, c. 250, one of the objects of which was to prevent the arrest of an honest and poor debtor after a mere ex parte hearing of the judg- ment creditor. It lessened a corruption of practice under G. S. c. 124, § 5 (which, with changes, corre- sponds to P. S. c. 162, § 17), under which judgment creditors, or some persons in their behalf, — frequently their attornej's, — would swear, as a merely formal matter, to affidavits containing the first charge, and some magistrates would accept it as a sufficient proof. Under the present P. S. c. 162, § 18, however, the judgment debtor has an opportunity to appear and put the judgment creditor to the. proof that he has property. Thus the magistrate is provided with better information before granting or refusing the application for a certificate for arrest. Consequently, in common practice, the judgment creditor makes under § 17 the " application " mentioned in § 18, by merely asking for a notice to the debtor, or, as it is usually called, " a citation," to distinguish it from what is usually called the " notice " to a plaintiff or judgment creditor. But of course if the judgment creditor does not wish to run the risk of the debtor's taking the course described toward the end of 367, he should for safety, while the point is undecided, make an affidavit before the issue of notice. The fee for the citation is one dollar (§ 68). 403. Notice or " Citation.'^ — The magistrate fixes the time and place for the debtor's examination as EXAMINATION OP JUDGMENT DEBTOR. 253 nearly as possible for the convenience of the appli- cant, and issues a notice or " citation," substantially (§ 19) according to the form provided by § 19. " Sect. 19. The notice to the debtor required by the preceding section shall be signed by the magistrate, designating his official capacity, and shall be substantially in the following form : viz., — To A. B. C. D., the judgment creditor named in a certain execution against you, dated , issued from [here designate the court] , having applied for a certificate authorizing your arrest, you are hereby notified to appear before [here designate the name or names of some magistrate or magistrates named in section twenty- seven] at [here designate the place of examination or hearing] on the day of at o'clock in the noon for examination in accordance with the provisions of chapter one hundred and sixty-two of the Public Statutes. E. F. ^ I The following is the form in common use. FOEM 13. Customary and Statutory Form for a Notice or Citation to a Judg- ment Debtor. COMMONWEALTH OF MASSACHUSETTS. ss. , A. D. 18 — . To , the Judgment Debtor : , the Judgment Creditor, named in a certain exe- cution against you, dated the day of , a.d. 18 — , issued from , within and for the said county of , having applied for a certificate authorizing your arrest, you are hereby notified to appear before me at my office, in No. — , Street, at , on the day 1 See 207. 254 PEACTICE. of , at o'clock in the noon, for examination in accordance with the provisions of chapter 162 of the Public Statutes. Feb, $1.00. Master in Chancery. Upon the back of this notice or citation is usually printed the following form : — officer's betuen. ss. , A. D. 18 — . I, this day, at o'clock and minutes in the -noon, served the within notice [by delivering an at- tested copy thereof to the within-named Judgment Debt- or]' [by leaving an attested copy thereof at the last and usual place of abode of the within-named Judgment Debtor].! The said service was made at No. — , Street, in said . , Deputy Sheriff^ , Constable.^ The judgment creditor causes the notice or citation to be delivered to an officer (382) with instructions to serve it. The officer then serves it according to § 18, and writes his return of service upon the origi- nal notice, and should return the same to the magis- trate who issued it. Some of the constables bring the return to the judgment creditor's attorney when he wishes this done. But this is irregular, and subjects the judgment creditor to the risk of the magistrate's not attending at the time and place fixed, in conse- quence of no return having been made to him to show * Erase the unnecessary words and leave those which state the fact. EXAMINATION OF JUDGMENT DEBTOE. 255 that the notice issued by him has been served, and that the matter is still pending within his jurisdiction. 404. Defective Notice and Service. — If the notice or its service does not fulfil the requirements of §§ 18, 19, the debtor of course need not appear, and the creditor will need to get a new and sufficient no- tice issued, and served properly. No particular time is required by § 18 to elapse between the first and any succeeding notice. In this respect § 18 differs from § 33. But the safer course, to prevent misunderstanding or objection, would be to notify the debtor that the first notice is withdrawn when a new notice is served in its stead (215). 405. Power of Magistrate to postpone or continue. — Section 18 says " The examination, or the time fixed therefor, may be postponed or continued from time to time at the discretion of the magistrate." Qucere : Does this give the magistrate the power to postpone the time for the examination before the ex- piration of the time in which the debtor may appear, without the issue and service of a new notice upon the debtor allowing another full period of three days and time for travel, unless the debtor waive such new notice ? 406. Qucere. — Non-attendance of Magistrate. — Sup- pose that the time appointed by a sufficient notice regularly served has arrived, and the debtor, but no one for the creditor, then appears at the place fixed. If no magistrate attends within the hour, who is au- thorized to take jurisdiction in the case for any pur- pose, then, after the expiration of the hour, whether the creditor appears or not, does § 24 apply, and is the debtor free for three years from proceedings for 256 PRACTICE. his arrest upon the same charge and cause of action ? If this be the rule according to a correct construction of §§ 18, 24, does it not also apply to all cases under § 18, both before and after the beginning of the ex- amination, and after any postponement or continu- ance, when the debtor is bound to appear and does appear, and there is no attendance by any magistrate having jurisdiction? In brief, must the creditor have a magistrate present, or lose his case , for three years, just as a defendant or debtor under a recogni- zance must have a magistrate present or commit a breach? P. S. c. 162, §§ 28, 34 (92, 93). 407. Continuance hy another Magistrate. — But the creditor is enabled to preserve his rights in the ab- sence of the magistrate before whom the notice is returnable by getting another magistrate to attend, under § 67, and " continue the proceeding for not more than thirty days, without costs, saving the rights of all parties " (396, Form 7). It would be more just to the judgment creditor if the legislature should make a rule similar to § 34, applicable to proceedings under § 18, so that the judg- ment creditor could get another magistrate, not only to attend and continue the proceeding, but also to examine the judgment debtor in the absence of the magistrate before whom this process " is returnable or continued " (§ 67). As the § 67 now stands, judg- ment creditors are sometimes put to damaging delays by the necessary absence of the magistrate before whom the process " is returnable or continued." To get another magistrate merely to attend and continue the proceeding frequently results in giving an opportunity to an ill-disposed judgment debtor to EXAMINATION OF JUDGMENT DEBTOR.' 257 conceal or to squander his property in the interval. Indeed this is now thought by many persons of ex- perience to be the chief result of the long notice required by § 18. This is true of fraudulent debtors, and is a necessary result of the protection intended to be given to honest debtors by § 18. A dishon- est debtor, who has not laid himself open to a charge of fraud under the last five charges of § 17, may, after he has received the notice or citation required by § 18, commit frauds which may be disclosed at his examination, when it is too late to get the prop- erty, and the only resource is to arrest him upon a charge of fraud, and have him tried and punished (§§ 17, 49-52). 408. Waiver of Attendance. — Continuance or Post- ponement hy Agreement. — Written Agreements. — Since the magistrate gets jurisdiction in these cases under §§ 17, 18, by the "application" of the judg- ment creditor, the debtor may waive his right to the benefit to which he is entitled by the absence of either a magistrate or the creditor just as he may consent to appear, without notice, for the examination ; but of course such a waiver rarely occurs with persons of experience in poor debtor matters, when the debtor has appeared at the time and place fixed. But it often happens, however, that before the time fixed for the examination, or any time to which the case has been postponed or continued, arrives, both parties agree that the time for the examination may be changed to a later date which is fixed by the magis- trate to accommodate as nearly as possible the conve- nience of every one concerned. Then it seems to be unnecessary for the magistrate to attend at the time 17 258 PEACTICB. and ■ place formerly fixed, for both parties having agreed to the later date, the notice may be taken to be changed by consent in that way, and the jurisdic- tion which began at the time of the "application" and notice or citation under § 18 continues without any new notice to the debtor. The magistrate is authorized by § 18 to postpone or continue " the ex- amination or the time fixed therefor " at his discretion, but such agreements are often required by the most careful magistrates to be in writing, in order that no misunderstanding, trick, or -falsehood may throw a doubt upon their jurisdiction (405). TpE Examination. 409. The examination is provided for by § 20 : — " Sect. 20. If the judgment debtor appears before the magistrate at the time and place fixed, he shall be exam- ined on oath touching his estate and effects and the dis- posal thereof. Such examination may be in the presence of the magistrate or otherwise as he shall direct, and when completed, if in writing, shall be signed and sworn to by the debtor, and shall be preserved by the magis- trate. The magistrate shall also hear any legal and pertinent evidence which either party nSay offer. The examination and hearing shall be oral, unless the parties, or one of them, requests that the same may be wholly or in part in writing. If the time for the return of the exe- cution expires while the examination is pending, or if the debtor fails to appear at the examination, or, if appearing, he fails to obey all lawful orders and requirements of the magistrate, the arrest may be authorized either upon the original execution, or upon an alias or other successive execution in like manner as upon the original execution." EXAMINATION OF JUDGMENT DEBTOE. 259 410. Attendance of Magistrate and Parties. — Swear- ing the Debtor. — Object of Written Examination. — If the magistrate before whom the notice is returnable attends, and the debtor (330) and either the creditor or his attorney appear at the time and place fixed, then, in practice, it is customary for the magistrate, unless objection is made and some preliminary motion or objection is to be heard, at once to swear the debtor with the usual oath administered to witnesses in court (398, Form 9). P. S. c. 162, § 20, requires that the debtor be ex- amined on oath, but it does not seem to require that the examination be begun at once, or that the debtor be sworn at once. There is nothing in the statutes which seems to require the debtor to be sworn before the time when his examination is actually to begin. It seems to be immaterial whether or not postpone- ments and continuances take place before he is sworn. Then, before or after he is sworn, any preliminary matters proposed by either party are heard, and if no postponement or continuance is ordered, and the par- ties are ready, the debtor is sworn, if he has not been sworn already, and the examination begins. It is usual for the examination to be in writing, under § 20, for the judgment creditor sometimes requests it in order to make sure of his proof of property, or to catch the debtor in perjury ; and the debtor sometimes requests it either because he is confident of disproving his possession of property by an accurate statement, or to gain time. Lawyers of experience in poor debtor practice, if they are for the creditor, almost always insist upon a written examination. 411. The Issue. — The issue in the examination is 260 PKACTICB. made by P. S. c. 162, § 21, to be as follows : Whether " the debtor has estate or property of any kind above the amount of twenty dollars, not exempt from being taken on execution." " Sect. 21. If it appears that the debtor has estate or property of any kind above the amount of twenty dollars, not, exempt from being taken on execution, he shall, if possible, produce the excess and allow it to be taken on the execution, or otherwise applied to the payment of the judgment debt and of the costs -of the proceedings. If said estate or property cannot be taken on the execution, the debtor shall be required to execute and deliver to the judgment creditor, or to some person in his behalf, a transfer, assignment, or conveyance of the same, in such form as the magistrate may direct." 412. The Examination. — A convenient and com- mon practice is for the magistrate to begin the exam- ination by asking the debtor the following question : "Have you any property?" This question is the beginning of the direct examination, for since the creditor is the applicant and is in his original position of plaintiff in this proceeding, the debtor is in the po- sition not only of a defendant, but also of a witness of the creditor. But since he is an adverse witness, the creditor is allowed privileges like those of cross-exam- ination. 413. Written Examination. — It is convenient in practice for the magistrate to have a printed or writ- ten form at the head of a paper prepared for the ex- amination. EXAMINATION OP JUDGMENT DEBTOR. 261 Form 14. commonwealth of massachusetts. ss. , 18—. , Judgment Creditor, vs. , Judgment Debtor. Before , Esq., Master in Chancery, . Examination of the said , judgment debtor, on the application of the said , judgment creditor, for a cer- tificate of arrest . Questions by the Magistrate. 1st. What property have you ? Answer: . Questions by , Esq., Attorney for the . 1st. . The magistrate is not required to write any part of the examination. The party who requests the writ- ten examination must do the writing, unless, as is the custom when both parties have attorneys, the attorneys agree to write as is convenient for them. The creditor's counsel continues the direct exam- ination by writing down one question after another, and reading each, as soon as it is written, to the debtor. The debtor answers, and his counsel writes down his answers. If the debtor has no counsel, as sometimes happens, and the creditor insists upon a written ex- amination, his counsel usually has to write both ques- tions and answers. Then, when there is a debtor's counsel, he follows with his questions to the debtor, which, technically speaking, are upon cross-examina- tion. He writes down his own questions, and the creditor's counsel writes down the debtor's answers. This seems to be the most convenient mode of carrying 262 PBACTIGE. on a written examination. The questions and an- swers are numbered to^ correspond with one another. The most careful counsel require each answer which is written down by the counsel for the other side to be read over to the debtor as soon as it is written after he has given it. Then, when the examination is concluded, the debtor frequently wishes to have the whole series of ques- tions and answers read over to him, in order that he may make corrections if desirable. This reading of the whole is usually done' in the presence and hearing of the magistrate, to save trouble in the event of his wishing to hear the whole read over. This is the best way for the magistrate to get a view of the whole ex- amination, if he has not heard all the answers given, and he usually has not, since in most cases it would be a mere waste of time. It is also valuable in order that the magistrate may appreciate the corrections as they are made. If the examination, or any part of it, has been conducted, as is allowed by P. S. C..162, § 20, out of the presence and hearing of the magistrate, of course he has such part as he has not heard read to him. It is customary for the counsel on either side to read the questions and answers which they respectively wrote responsively as they wrote them, in the manner of a dialogue. The papers containing the examination are then fastened together in order. Section 20 says : " Such examination . . . when completed, if in writing, shall be signed and sworn to by the debtor." The common practice is for the debtor to sign, and, although he has been already sworn, to swear again to the series of questions and answers which constitute his " examination " before EXAMINATIOK OP JUDGMENT DEBTOR. 263 any wityesses are examined. Section 20 provides that the " examination . . . shall be preserved by the magistrate." It is not common to examine the debtor further after he has signed and sworn to the written questions and answers. But his examination does not seem to be completed until the magistrate decides it to be so. The signing it and swearing to it do not neces- sarily complete the " examination," and it seems to be within the discretion of the magistrate to allow either side to put additional questions to the debtor, and to have them with the answers to them made a part of the written " examination," at any time before his decision of the case, notwithstanding the fact that the debtor may have already signed and sworn to the first series of questions and answers. Such an addi- tion would be unusual, and not favored without a good reason for it ; but under special circumstances it might be justly asked by and granted to either party. In such an event the debtor should sign and swear to tlie subsequent series of questions and answers as he did to the first. Section 20 seems to allow the magis- trate himself to question the debtor at any time. But this discretion should be very sparingly used, when both parties are represented by counsel who under- stand their business. Usually the magistrate asks very few if any questions after the first, if both parties have counsel present. When the debtor signs the examination, the magis- trate swears him to it, and adds after the debtor's signature such a certificate as the following. When an addition is made after the signing, the debtor signs and swears to the addition as above described, and the magistrate adds a new certificate of this. 264 PRACTICE. The following certificate will serve for the purpose : FOEM 15. Certificate annexed to Written Examination. ss. , 18—, Subscribed and sworn to, before me this day. Master in Chancery. According to § 20 the papers containing the exam- ination are then " preserved. " by the magistrate. When either party wishes to take them away from the magistrate's office temporarily he gives a receipt for them to the magistrate. 414. The Whole Hearing in Writing. — The words " the examination and hearing " in § 20 seem to in- clude the hearing of other witnesses as well as the examination of the defendant in the rule that writing may be required by either party. The act of 1877, 0. 250, § 2, although it required the examination of the debtor to be in writing in all cases, did not require the examination of other witnesses, to be in writing. But the act of 1879, c. 283, ^ 1, includes " all hear- ings " in its provision requiring writing upon the request of either party. This part of P. S. c. 162, § 20, is the result of this amendment. 415. Examination ordered out of Magistrate' s Pres- ence. — Section 20 says, "Such examination may be in the presence of the magistrate or otherwise as he shall direct." The common practice is as follows: After the parties have appeared, and the creditor has paid the magistrate's fee of three dollars (§ 68) for that day's examination, then if the magistrate, or the par- ties, or either of them, wish to have the examination EXAMINATION OF JUDGMENT DEBTOR. 265 out of the presence of the magistrate, the magistrate having sworn the debtor, and any witnesses that may be ready, upon learning what time and place will suit the parties, fixes them accordingly, and orders the examination to be carried on at such time and place, or leaves it to the parties to arrange the time and place. He also fixes a time and place for the next appearance of the parties before him. Since, as fre- quently happens, it is more convenient for the parties to wait until the examination of that day has gone far enough to show them what time and place will be best, or whether any further examination or hearing will be needed, sometimes the magistrate, while or- dering the examination to be carried on elsewhere, keeps the hearing open all day at his own ofiice, or at whatever place may be convenient for all concerned until a fixed time. Then the parties later in the day may come before him to have him decide upon dis- puted questions of evidence, and also to hear them read the examination," and any " legal and pertinent evidence " which either party may have put in. Then usually the magistrate at once decides the case if it be a short one, or, if he is not ready, he fixes a time and place for another hearing. Or, if the parties have agreed upon a time and place which they know wUl be approved by the magistrate, they do not come before him, but send him a written agreement for a contin- uance or postponement, which he adopts under an understanding that he would do so, which was ar- ranged beforehand for the convenience of all persons connected with the case, and according to the power given him by § 18. When the examination is to be held out of the 266 PKAGTIOE. presence of the magistrate, the parties usually agree upon some hour of that same day of their appearance, and accommodate each other as well as they can afterwards in taking recesses. But when the parties leave the magistrate's presence the magistrate, with or without an agreement of the parties, should cer- tainly fix the time and place for attendance of both parties before him, in order that he may keep his jurisdiction and be able to determine when there is a default of either party or any disobedience of the debtor. 416. Rule of Uvidenee. — The examination of the debtor and other witnesses is governed by the rules of evidence prevailing in civil cases in the courts of the Commonwealth. Section 20 prescribes " legal and pertinent evidence," which is the rule of §§ 37, 88. 417. Relevancy of Fraud, — The examination of the debtor is " touching his estate and effects and the disposal thereof" (§ 20). The question at issue in this examination is as above stated, according to § 21, whether the debtor has "es- tate or property of any kind above the amount of twenty dollars not exempt from being taken on execu- tion." Hence he is examined touching the " disposal " of his property in order to discover whether he "has" such "excess," so that he can produce or assign it in obe- dience to the magistrate for the benefit of the creditor. The question of fraud is irrelevant in so far as fraud itself is concerned. Even if it appear that the debtor has disposed of his property fraudulently, if it appear also that he "has" it not, so that it is beyond his power to produce, or transfer, or assign, or convey it EXAMINATION OF JUDGMENT DEBTOB. 267 for the creditor's benefit, it does not seem that the magistrate can lawfully make any order concerning the property, and it does seem that the debtor will have fulfilled all the requirements of § 24 by his ap- pearance and submission to the examination, and the magistrate will have to refuse to grant the certificate applied for. Fraudulent acts of the debtor seem to be relevant only when they tend to show that the debtor has, or has disposed of, some estate or prop- erty, and then their fraudulent character is immate- rial, except in so far as it is explanatory or indicative of such possession or disposal in answer to the issue of § 21, whether "the debtor has estate or property of any kind above the amount of twenty dollars not exempt from being taken on execution." (41.) 418. Non-appearance or Disobedience of Debtor. — If the debtor has been duly served with the notice, but does not appear as directed by the magistrate ; or if he appears, but does not obey all the lawful orders and requirements made by the magistrate, § 20,. the judgment creditor is entitled to the benefit of the provisions of P. S. c. 162, § 17, for § 18 is satisfied, and § 20 says, "the arrest mai/ be authorized." It does not say that it shall be " authorized." Hence, since the only tests furnished by the statutes are the affidavit and proof under § 17, and the only mode provided for the magistrate's action is, by "a certifi- cate authorizing " the arrest, it is reasonable to infer that the magistrate then proceeds under § 17 as if it was not affected by §§ 18, 20, and just as he could have done upon the first charge before the Act of 1877, c. 250. (367.) According to the usual practice and under the con- 268 PBACTICB. struction of § 20 above adopted (367), requiring an affidavit at this point, the creditor, or some person in his behalf, having appeared before the magistrate, makes the affidavit required by § 17, and proves, if he can, to the satisfaction of the magistrate, the alle- gations set forth in the following affidavit. The magistrate, if he is satisfied, signs the certificate, which is usually printed with the affidavit, with his name and judicial title, and annexes the affidavit and certificate to the writ of execution : — FOEM 16. Customary Form for Affidavit and Certificate of Arrest of a Judg- ment Debtor after Notice. COMMONWEALTH OF MASSACHUSETTS. 8S. A. D. 18 — . I, , the judgment creditor^ named in the annexed execution, do on oath declare that the judgment on which the said execution has been issued amounted to twenty dollars, exclusive of all costs which make part of said judgment, whether the same have accrued in the last action, or any former action on the same original cause of action, and that twenty dollars of that amount remain uncollected ; and that I believe and have good reason to believe that the debtor named in the said execution, 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. COMMONWEALTH OP MASSACHUSETTS. SS. A. D. 18—. Personally appeared the above-named before me and made oath that the above affidavit by him sub- 1 Or, in behalf of the judgment creditor or creditors. EXAMINATION OF JUDGMENT DEBTOR. 269 scribed is true ; and I certify that after due hearing I am satisfied there is reasonable cause to believe that the charges made in the said affidavit are true ; I also certify- that it appears, from the evidence before me, that said debtor has been duly notified to appear before me for ex- amination as provided in chapter 162 of the Public Stat- utes, and has neglected and refused so to appear,^ and satisfactory cause having been shown, I hereby authorize ^ the arrest of the said debtor, , to be made after sunset. Master in Chancery. See above (376, 377, 378) for a description of ex parte hearings, and the making of affidavits and the issue of certificates ; for the proceedings are the same upon execution as upon mesne process. 419. Affidavits, Proof, Certificates, and Executions. — The proof offered by the creditor in practice, if there has been no examination, is frequently the creditor's story told by his counsel to the magistrate ; but when there has been an examination, is often the debtor's own testimony if that shows property. If the magistrate is satisfied, the affidavit is signed and sworn to before him by the applicant, unless it was sworn to before the notice was issued, as is some- times required by the most careful counsel, to avoid the question discussed (356-367) under The Appli- cation of a Judgment Creditor. But even when the 1 Or, has appeared but has neglected and refused to obey lawful orders and requirements made by me, to wit : (then specify what order he has disobeyed). 2 See for " authorize " and its qualification, " if his arrest is authorized by law." (4,379.) 270 PEACTICE. affidavit has been made >before tlie issue of notice, if afterwards the hearing or examination is before an- other magistrate, some counsel prefer to have a second affidavit made before the second magistrate, and to have both affidavits annexed with the certificate to the writ of execution, in order to meet possible ob- jections to either one theory or the other. Then the certificate is made, and signed by the magistrate with his name and judicial title. (See 377, 378, under Arrest on Mesne Process, for a further account of ex parte hearings.) The affidavit or affidavits, and certificate or certificates, are then annexed to the execution, usually by the magistrate. The creditor gives the execution, with these additions, to an author- ized officer, with instructions what to do ; the officer takes it and goes to seek and arrest the debtor. (See Oppicees in the chapter on Arrest on Mesne Process in Actions of Contract, 382.) FOEM 17. Common Form of Execution. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss. To the Sheriffs of our several Counties, or their Deputies, or any Constable of our City of Boston : GREETING. Wheeeas , of Boston, within our ^county of Suffolk, by the considerar tion of our Justices of our Superior Court, holden at Boston, for and within our county of Suffolk, aforesaid, on the first Tuesday of last, to wit, on the day of A. D. 18 — , recovered judgment against , of said Boston, for the sum of dollars and cents damage, and dollars and cents cost EXAMINATION OF JUDGMENT DEBTOR. 271 of suit, as to us appears of record, whereof execution re- mains to be done, we command you, therefore, that of the goods, chattels, or lands of the said judgment debtor , within your precinct, yon cause to be paid and satisfied unto the said judgment creditor , at the value thereof in money, the aforesaid sums, being dollars, and cents, in the whole, with interest thereon from said day of the rendition of said judgment, and with cents more for this writ, and other ^ and thereof also to satisfy yourself for your own fees ; and for want of goods, chattels, or lands of the said judgment debtor , to be by h m shown unto you, or found within your pre- cinct, to the acceptance of the said judgment creditor to satisfy the sums aforesaid, with interest as aforesaid, we command you to take the bod of the said judgment debtor , and h m commit unto our jail in Boston, in our county of Suffolk, or any jail in your precinct, aforesaid, and detain in your custody within our said jail, until he pay the full sums above mentioned, with your fees, or that he be discharged by the said judgment credi- tor , or otherwise, by order of law. Hereof fail not, and make return of this writ, with your doings therein, into the Clerk's Office of our said Superior Court, at Boston, within our county of Suffolk, aforesaid, in sixty days after the date hereof. Witness, ^ Esquire, at Boston, the day of , in the year of our Lord one thousand eight hun- dred and . Clerk. 1 Or erase italics, a? the case may be. 2 The name of the Chief Justice of the Superior Court. 272 PBACTICE. FOEM 18. Common Form of Execution on Trustee Process. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss. ' To the Sheriff of our several Counties, or their Deputies, or to any Constable of our City of Boston : GREETING. Whereas , of Boston, within our county of Suffolk, , plaintiff by the consideration of our Justices of our Superior Court, holden at Boston, within and for our county of Suffolk, aforesaid, on the first Tuesday of last, to wit, on the day of A. D. 18 — , recovered judgment against , of said Boston, , defendant , for the sum of dollars and cents damage ; and dollars and cents cost of suit ; and whereas, by the con- sideration of the same Court, execution was likewise awarded for the same sums against the goods, effects, and credits of the said defendant in the hands and posses- sion of , of said Boston, , trustee of the said defendant , as to us appears of record, whereof execu- tion remains to be done ; we command you, there- fore, that of the goods, chattels, or lands of the said defendant , in own hands and possession, and of the goods, effects, and credits of the said defendant , in the hands and possession of said trustee , jointly and sever- ally, you cause to be paid and satisfied unto the said plaintiff , at the value thereof in money, the aforesaid sums, being dollars, and cents, in the whole, with interest thereon from said day of the rendition of said judgment, and with cents more for this writ ; and other ; ^ and thereof also to satisfy yourself for your own fees ; and for want of goods, chattels, or lands of the said defendant in own hands and possession, to 1 Or erase italics, as the case may be. EXAMINATION OF JUDGMENT DEBTOR. 273 be by h m shown unto you, or found in your precinet, to the acceptance of the said plaintiff ; and for want of goods, effects, and credits of the said defendants in the hands and possession of the said trustee to be by h m discovered and exposed to you, to satisfy the several sums aforesaid, with interest as aforesaid, with your own fees, we command you that you take the bod of the said defendant and h m commit unto our jail in Boston, in our county of Suffolk, or any jail in your precinct, aforesaid, and detain in your custody within our said jail, until he pay the full sums aforementioned, with your fees, or that he be discharged by the said plaintiff , the creditor , or otherwise by order of law. Hereof fail not ; and make return of this writ, and of your doings therein, into the Clerk's Office of our said Superior Court, at Boston, within our county of Suffolk, in sixty days after the date hereof. ■VVitness, ,^ Esquire, at Boston, the day of , in the year of our Lord one thousand eight hun- dred and . Clerk. 420. Privileges of Judgment Debtors lefore a Magis- trate. The judgment debtor, " when arrested on execution in any case " (P. S. c. 162, § 27), shall be taken before some authorized magistrate described in § 27, and then proceed as above described in the chapter on Arrest on Mesne Process in Actions of Contract (391 et seq.}, just as if he were a defend- ant arrested on mesne process, except that the judg- ment debtor cannot give bail, and except that he cannot be discharged by taking an oath that he does not intend to leave the State unless he has been arrested under P. S. c. 162, § 25 (424). 1 The name of the Chief Justice of the Superior Court. 18 274 PBACTICE. 421. Arrest upon the Charge that the Judgment Debtor intends to leave the State. — Hence a debtor arrested upon the affidavit and certificate in Form 16 has fewer privileges than one arrested under § 25, without notice, upon such an affidavit and certificate as the following : — FOEM 19. Customary Form of Affidavit and Certificate of Arrest ivhen a Judgment Debtor intends to leave the State. COMMONWEALTH OF MASSACHUSETTS. SS. , A.D. 18 — . I, , the judgment creditor^ named in the annexed execution, do on oath declare that the judgment on which the said execution has been issued amounted to twenty dollars exclusive of all costs which make part of said judgment, whether the same have accrued in the last action, or any former action on the same original cause of action, and that twenty dollars of that amount remain uncollected; and that I believe and have good reason to believe that the debtor, , named in the said execution, has property not exempt from being taken on execution, which he does not intend to apply to the pay- ment of the judgment creditor claim ; and I do further on oath declare that there is good reason to believe that the said debtor intends to leave the State. COMMONWEALTH OP MASSACHUSETTS. SS. , A. D. 18—. Personally appeared the above-named before me, and made oath that the above affidavit by him subscribed is trae ; and I certify that, after due hearing, I am satis- fied there is reasonable cause to believe that the charges ^ Or, in behalf of the judgment creditor. EXAMINATION OP JUDGMENT DBBTOE. 275 made in tlie said affidavit are true ; and I hereby author- ize ^ the arrest of , the said debtor ; and satisfactory cause having been shown, I hereby authorize said arrest to be made after sunset.' Fee, $1. 422. The Policy of a Debtor. — Default at the Preliminary Uxamination. — The judgment debtor arrested under P. S. c. 162, §§ 17, 20, after notice under §^ 18, 19, or without notice under § 17, upon one of the charges of fraud following the first clause, has only the resources of a recognizance, and an application to take the poor debtor's oath. If his arrest is for not appearing in response to the notice of § 19, then the creditor has not the advantage of the opportunity given by a preliminary examination under § 20 to prepare to arrest him on the spot, and to prepare also to prevent his taking the poor debtor's oath, after arrest and an application to take it, by contradicting him upon his examination under §§38 and 39, and to prepare to make charges of fraud under § 17 before, or § 49 after the arrest. It is therefore for the advanta,ge of the debtor, if he in- tends to try to take the poor debtor's oath, to be de- faulted for non-appearance under the creditor's notice of § 19, and to allow the creditor to arrest him upon a certificate to that effect (Form 16). Then the debtor can recognize or immediately apply to take the poor debtor's oath, and the creditor has no more time to prepare to take him by surprise than is 2 P. S. c. 162, § 25, says, " The magistrate . . . may au- thorize Hs arrest ; " but see (4). "(4). 276 PRACTICE. required for the short regular notice issued on the debtor's application to take that oath. ' P. S. c. 162, § 31. In practice, charges of fraud are more apt to be filed M'hen the creditor has examined the debtor after notice under § 19, and then is put to the trouble of arresting him under §§ 17, 24, after studying the examination, than when the debtor does nothing but wait to be arrested and apply to take the poor debtor's oath. This in a measure sometimes takes the creditor by surprise ; and he has less time to prepare charges of fraud, which are sometimes per- plexing to draw, especially without a previous exami- nation of the debtor and subsequent inquiry. If the creditor is ill disposed, he may give an honest debtor much trouble by a charge of fraud based upon evidence which may appear sufficiently suspicious at the ex parte hearing upon the affidavit, but which the debtor can explain, although with much labor. Therefore the debtor sometimes has to choose between running the risk of the disgrace of an arrest, with the chance of getting discharged, on the one hand, and the danger of the preliminary exami- nation, and an arrest on a charge of fraud after- wards. 423. The Policy of applying to take the Poor Debt- or's Oath. — If the debtor, when arrested without notice under § 25, applies to take the poor debtor's oath instead of or in addition to the oath that he does not intend to leave the State, and succeeds in getting it administered to him', he will thus avoid both the liability to a subsequent arrest upon any of the last five charges specified in P. S. c. 162, § 17, founded on the same cause of action (P. S. EXAMINATION OF JUDGMENT DEBTOR. 277 c. 162, § 40), and the liability to an examination concerning his property, without further notice, to both of which § 37 declares him to be liable if he simply obtains a discharge from arrest on the ground that he did not when arrested, and does not at the time of the examination under § 37, intend to leave the State. " Sbct. 25. If in addition to the first charge specified in section seventeen the judgment creditor, or some one in his behalf, makes affidavit and proves to the satisfac- tion of the magistrate that there is good reason to believe that the debtor intends to leave the state, the magistrate may, without notice to the debtor, authorize his arrest. " Sect. 37. If the defendant or debtor, arrested on mesne process or under section twenty-five, on execution, has given notice that he desires to take an oath that he does not intend to leave the state, he shall be examined in relation thereto, and any legal and pertinent evidence may be introduced by either party. If the magistrate is satisfied that the defendant or debtor did not when arrested, and does not at the time of examination, intend to leave the state, he shall make certificate thereof, and discharge the defendant or debtor from arrest ; but such discharge from arrest on execution shall not prevent the subsequent arrest of the debtor upon any of the last five charges specified in section seventeen ; and immediately upon such discbarge, if the creditor so desires, such debtor shall be required, without further notice, to submit to examination in the manner provided in sections twenty to twenty-four inclusive." 424. Classification of the Rights of Judgment Debt- ors before a Magistrate. — Suppose that a judgment debtor has been arrested and taken before an author- ized magistrate (the poor debtor's oath not having 278 PKACTICE. yet been refused, § 36, and no writ of scire facias having been served upon the bail of the debtor on his bail bond, if any were given by him in the original action, § 42), at and after this point, namely, when in the presence of the magistrate and subsequently, the result of P. S. c. 162, § 41, and the other provisions of that chapter may be expressed as follows : — All judgment debtors arrested upon any execution have the same rights under P. S. 162, and may pro- ceed in the same way thereunder, excepting judg- ment debtors arrested under § 25, upon the ground that they intend to leave the State (who also have the same rights, and may proceed in the same way, but who in addition thereto have the right to pro- ceed with a view to taking the oath that they do not intend to leave the State), and excepting also women and judgment debtors of the Commonwealth, who are provided for in P. S. c. 162, §§ 6-16 (285, note). Thus debtors arrested on execution issued for costs only (§ 5) ; debtors arrested on execution in actions of tort (§ 17) ; debtors arrested after examination or notice, or both, in a civil action other than of tort upon the first charge in § 17 ; debtors arrested without notice upon any charge except the first charge in § 17 (including cases where notice of the first charge has been given, but the subsequent arrest is upon a subsequent charge, whether there has been an exam- ination or not under that notice), — all when taken before the magistrate are in the same position, with the said exception of the additional privilege given by § 37 to such as have been arrested under § 25, and the exception of women, §§ 6-16, and judgment debtors of the Commonwealth under § 16, and §§ 63-55. EXAMINATION OF JUDGMENT DEBTOR. 279 And if those who are arrested under § 25 fail to satisfy the magistrate concerning their intention about leaving the State, they are then in the same position with all the other debtors arrested on execution, except women and judgment debtors of the Common- wealth ; for, having exhausted their additional privi- lege, they are stQl under arrest and in the presence of the magistrate. Any of such debtors, with the said exceptions of women and judgment debtors of the Commonwealth, when thus taken before the magistrate, may recog- nize at any time (§§ 28, 36, 44), then or thereafter, until the poor debtor's oath has been refused, and even then in case of appeal after a trial upon a charge of fraud (§ 51),^ and, if surrendered by a surety, may recognize anew (§ 29). (420; 391 et seq.) " Sect. 29. A person taken on execution, and recog- nizing, if surrendered by his surety, may recognize anew for such appearance at the time, place, and upon the con- ditions expressed in the first recognizance." ^ 425. Preparation for Settlement. — If he applies at once (§ 28) to take the oath, he can usually make such an arrangement with the officer as is above described (395), by which his examination may be held or begun, or a hearing concerning it be had, with both parties represented, mthout his being taken to jail beforehand. Thus a settlement is sometimes reached, 1 See 74, 76, 77. 2 Section 29 omits the following words, which occur after the word " recognizing " in the corresponding G. S. c. 124, § 11, "for his appearance to take'the oath for the relief of poor debtors." 280 PBACTICE. through an agreement of the parties, without the debtor's having been taken to jail, and the case is withdrawn from before the magistrate. 426. Commitment, and Application for Oath in Jail. — But if the debtor does not desire to take the poor debtor's oath, or fails to procure a surety or sureties, to the satisfaction of the magistrate, for a recogni- zance, no certificate is required by § 44, but it is the custom for the magistrate to make one, and to annex it to the execution (316).^ Then the officer, howsoever accommodating he may be, must sooner or later take the debtor to jail (§ 44). " Sect. 44. If the debtor arrested on execution and taken before the magistrate does not desire to take an oath, or fails to procure surety or sureties to the satisfaction of the magistrate as before provided, or if upon his exam- ination the oath or oaths are 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 until the execution is satisfied, or he is released by the creditor, or has given notice as before provided and taken the oath for the relief of poor debtors, or the oath that he does not intend to leave the state, in cases where such oath is permitted." When the officer commits his prisoner to jail, he delivers the prisoner's body, and an attested copy of the writ, and whatever is annexed to it, including a copy of his own return of such delivery (399), into the custody of the jailer. When in jail, the debtor 1 See the Additional Forms at the end of the chapters on Practice. EXAMINATION OF JUDGMENT DEBTOR. 281 may get released by satisfying the execution, or by persuading the creditor to consent to his release, or by sending for an authorized magistrate to come to the jail and by recognizing to his satisfaction. Or he can try to get released by sending to the magistrate an informal application to take the poor debtor's oath, and procuring a notice to appear at the jailer's office in the jail where he is imprisoned, to be issued to the creditor (§ 31), and served according to § 32. It is customary for the party who asks the magistrate to go to the jail to pay three dollars in advance for such ■ attendance. FOEM 20. Customary and Statutory Form for Notice to Judgment Creditor of the Debtor's desire to take an Oath or Oaths. COMMONWEALTH OF MASSACHUSETTS. ss. , 18—. To Creditor: Debtor, arrested on execution in your favor, desires to take the oath for the relief of poor debtors,^ and this day of 18 — , at of the clock in the noon, and the office of , in said in said county, are appointed the time and place for the examination of said Debtor. Fee, $1. Master in Chancery. EORM FOE officer's RETURN. ss. 18—. I this day, at minutes o'clock, in the noon, served the within notice, by giving an attested copy 1 If the debtor has been arrested and committed under § 25, then may be added the words, — and " the oath that he does not intend to leave the State" (§31), or the desire to take that oath alone may be stated. 282 PEACTICE. thereof to , Esq., Attorney of the within named Judgment Creditor.^ Said service was made at No. Street, in , in said county. Fees, I , Constable.'^ , Deputy Sheriff.^ This is usually attended to by the debtor's attorney. 427. Discharge without Examination. — Then, at the time appointed, the magistrate, having received from the debtor before coming to the jail the custom- ary, not statutory, fee of three dollars for leaving his ■ own office, attends at the jailer's office. The jailer brings in the debtor from his cell, and keeps him there during the examination or hearing. If the creditor, or some one in his behalf, does not attend the examination and pay the magistrate three dollars, which is the fee for the examination, the " debtor shall, without examination and without pay- ment of any fees, be discharged " from imprisonment (§ 68) (371). The magistrate, if the officer's return shows sufficient service, makes a certificate of such discharge (in practice often in duplicate), and signs each original with his name and official title, and gives one to the jailer, who annexes it to the copy which the officer has left with him, and gives the other to the debtor or his attorney, who afterwards goes and annexes it to the execution. 1 Or, if otherwise, state how the service was made. 2 As the case may be. EXAMINATION OF JUDGMENT DEBTOE. 283 FOEM 21. Customary Form for Certificate of Discharge of Judgrrient Debtor without Examination on Non-attendance of Creditor. COMMONWEALTH OF MASSACHUSETTS. ss. 18—. The within-named, , Judgnaent Debtor, having notified, according to law, the within-named, , Judg- ment Creditor, of his desire to take the benefit of the law for the relief of poor debtors, and neither the said nor any person on behalf attending the exam- ination of said at the time fixed therefor, or during one full hour thereafter, I have discharged said from arrest and imprisonment, as provided by law. Master in Chancery. The jailer then releases the debtor. Effect of Unnecessary Oath. — Perjury. — Jurisdic- tion. — In such an event no oath is administered to the debtor, but nevertheless § 68 provides that he " shall be forever exempt from arrest on the same execution or any process founded on the judgment." These same words are used in § 40 concerning the defendant or debtor who has been examined and has taken the poor debtor's oath. In § 40 they are followed by the words, " or on the same cause of action." If, however, the poor debtor's oath be administered, in such a case the discharge is not thereby invali- dated 1 (322). But since the debtor and his attorney sometimes wish to take every precaution, and may err by doing too much, it is well to remember that by 1 Hyatt V. Felton, 9 Allen, 378 (1864), Contract on Recog- nizance. 284 PEACTICE. taking an oath in such a case the debtor may perhaps subject himself to the exception of § 40, by which he loses the benefit of having taking the oath if " con- victed of having wUfully sworn falsely on his examin- ation." The oath implies an examination for it, and if the debtor who is entitled to be discharged under § 68 " without examination " can waive this advantage and submit to an examination notwithstanding the creditor's absence, it would seem that if he does so he should be subject to § 40. But there is a question whether the magistrate has jurisdiction to administer the oath in such a case. Akbbst after Chaeges op Fbaud. 428. Affidavits. — Certificates. — Mrst Charge is Sur- plusage. — When the creditor, or some one in his behalf, having an execution described in § 17, goes - before an authorized magistrate (§§ 17: 1), and, in- stead of proving the first charge of § 17, proves one or more of the last five charges of § 17 to the satisfac- tion of the magistrate, the magistrate swears him to an affidavit in the following form, and issues the cer- tificate in the way described for other certificates (376-379). The following form contains all the last five charges: — Form 22. Customary Form for Affidavit of Charges of Fraud and Certificate on Execution. COMMONWEALTH OF MASSACHUSETTS. ' ss- , A. D. 18—. I, , the judgment creditor i named in the annexed execution, do on oath declare that the judgment on which 1 Or, in behalf of the judgment creditor. EXAMINATION OF JUDGMENT DEBTOE. 285 the said execution has been issued amounted to twenty dollars exclusive of all costs which make part of said judgment, whether the same have accrued in the last action, or any former action of the same original cause of action, and that twenty dollars of that amount remains uncollected, and that I believe and have good reason to believe that since the debt was contracted, and the cause of action accrued, the debtor , named in the said execution, has fraudulently conveyed, concealed, and^ otherwise disposed of a ^ part of his estate, with a design to secure the same to his own use and^ defraud his cred- itors ; that since the debt was contracted, and ^ the cause of action accrued, the debtor has hazarded and paid money and ^ other property to the value of one hundred dollars andi more in a kind of gaming prohibited by the laws of this State, to wit ; i that since the debt was con- tracted the debtor has wUfuUy expended and misused his goods and i estate, and ^ a part thereof, for the purpose of enabling himself to swear that he has not any estate to the amount of twenty dollars, except such as is exempt from being taken on execution ; that the debtor contracted the debt with an intention not to pay the same ; that the debtor is an attorney at law ; that the debt upon which the judgment on which the execution issued was recov- ered was for money collected by the debtor for the cred- itor, and that said attorney unreasonably neglects to pay the same. COMMONWEALTH OP MASSACHUSETTS. , S8. , A. D. 18 — . Personally appeared the above-named , before me, and made oath that the above aflBdavit by him subscribed is true ; and I certify that, after due hearing, I am satis- 1 State it according to the fact. ' If possible specify what part. 286 PBACTICE. fied there is reasonable cause to believe that the charge '■ made in the said affidavit is true ; and satisfactory cause having been shown, I authorize the arrest of the said debtor to be made after sunset.'' Fee, Sl.OO. Master in Chancer^/. The aflBdavit and certificate are annexed to the execution as above described (379), and the creditor gives the execution to an authorized officer (382), who arrests the debtor (383). In such a case no notice to the debtor is required. Although the debtor may- have been examined under §§ 18, 19, 20, and may have got free under § 24 for three years from pro- ceedings for his arrest upon the first charge of § 17, nevertheless he may be arrested upon any of the said last five charges without notice, just as it was done before the Act of 1877, c. 250 (preceding the Public Statutes), was passed.^ In an affidavit containing any of the last five charges of § 17, the first charge should not be inserted. It would be surplusage, and was decided to be such by a majority of the court in Frost's Case, but it was also said by Morton, J., to be "irregular and improper." Since some of the common printed blanks for affidavits contain for convenience all or several of the charges of § 17 (Form 22), it is well for the magistrate to be careful to see that the first charge is erased when any other charge is made, for the creditor frequently believes the first charge, even after a discharge of the debtor under § 24, and 1 Or, charges, if more than one. 2 The common practice is to add, if his arrest is authorized by law, which is surplusage (4). 8 Frost's Case, 127 Mass. 550 (1879), Habeas Corpus (38-46). EXAMINATION OF JUDGMENT DEBTOR. 287 is apt to leave' it as it stands, if he is not familiar with the practice. ExAJVnNATION FOE THE PoOE DEBtOE'S OaTH. 429. Without Regard to any Charge. — In the ex- amination for the poor debtor's oath the proceed- ings are the same, whether after arrest upon mesne process or execution. If the creditor or some one in his behalf appears according to the notice, pays the fee of three dollars (§ 68), and signifies that he is there to " attend the examination," then, unless the creditor asks for an immediate trial upon a charge of fraud made in the affidavit or then filed pending the examination, the practice is for the examination for the poor debtor's oath to be "conducted without re- gard to the affidavit upon which the arrest has been made (49). The magistrate swears the debtor, asks the first question, and allows counsel, if any are'pres- ent, to examine him, and hears other witnesses, if there be any, under P. S. c. 162, § 38 (431). " Sect. 38. If the defendant or debtor has given notice that he desires to take the oath for the relief of poor debtors, the magistrate shall examine him on oath con- cerning his estate and effects, the disposal thereof, and his ability to pay the debt or satisfy the cause of action for which he is arrested ; and shall hear any legal and pertinent evidence that may be introduced by either party. The plaintiff or creditor may upon such examina- tion propose to the defendant or debtor any interroga- tories pertinent to the inquiry, and the examination shall, if required by either party, be in writing, in which case it shall be signed and sworn to by the defendant or debtor, and preserved by the magistrate." 288 PRACTICE. 430. The Issue. — The issue in the examination for the poor debtor's oath is the very broad one stated in P. S. c. 162, § 39, which involves the questions of prop- erty, ("now" § 40), and of the magistrate's opinion whether " the defendant or debtor is entitled to his dis- charge under the provisions of this chapter." (See the chapter on Property, Fraud, &c., 38 et seq., 76, 77.) 431. Order of Proceeding. — The order and mode of the examination for the poor debtor's oath are in gene- ral similar to what has been above described (412 et seq.) in the account of the examination under P. S. c. 162, § 20, after notice and before an arrest (419), except that the examination for the poor debtor's oath is held under §§ 34, 35, 36, 38, 39, and also except that the defendant or debtor is in the position of a plaintiff when he has applied to take the poor debtor's oath. But the issue being different (39), as to the amount of property and as to fraud if tried (76), the admission of evidence is to be regulated accordingly. Nevertheless (see 39), although when charges of fraud are not made, or, if made, are not proposed for trial by the creditor, the examination for the poor debtor's oath involves questions of fraud (P. S. b. 162, §§ 39, 40), and admits of evidence of fraud which cannot be proved in a trial on a charge of fraud (§ 49), (77). The issue then is property (76). When no charges of fraud are made or filed, or when the creditor files a charge, but does not ask to have the debtor tried upon it, the magistrate's deci- sion at the end of the examination is expressed by the forms in P. S. c. 162, §§ 39, 40 (39), when he administers the oath, and by Form 23, given below, when he refuses the oath. EXAMINATION OF JUDGMENT DEBTOR. 289 The consequences to the defendant or debtor of a decision in his favor are shown by P. S. c. 162, §§ 39, 40, and of a decision against him by §§ 43, 44. When the magistrate decides against the debtor, he makes the following certificate, and signs it with his name and judicial title. Form 23. Customary Form of Refusal of the Poor Debtor's Oath. COMMONWEALTH OF MASSACHUSETTS. ss. , 18—. I, , hereby certify that , arrested upon execution/ has caused , the creditor," at whose suit he is arrested, to be notified, according to law, of his desire to take the benefit of the law for the relief of poor debtors : that, in my opinion the said has estate, real and per- sonal, to the amount of twenty dollars, in addition to the goods and chattels which are by law exempted from being taken on execution : and has other estate now conveyed and concealed, and in divers ways disposed of, with de- sign to secure the same to his own use, and to defraud his creditors.' And I have, after due examination of the said , refused to administer to him the oath for the relief of poor debtors. Witness my hand this day of in the year eighteen hundred and . Fee, $1. Master in Chancery. The certificate is annexed to the execution, and a duplicate by the magistrate, or a copy attested by 1 Or, on mesne process. 2 Or, plaintiff, as the case may be. 8 Omit such statements as are not according to the magis- trate's "opinion." 19 290 PRACTICE. the officer having the execution, is annexed to the copies in the custody of the jailer (426), and the defendant or debtor remains in jail (P. S. c. 162, §§ 43, 44). If he were not there already he would have to be " conveyed to jail"i (P. S. c. 1G2, §§ 43, 44), (399). When such examinations are held elsewhere than in jail, after a defendant or debtor has recognized, and is therefore not under arrest during the examination, the defendant or debtor may go free even after the magistrate has decided against him, as soon as the magistrate has made the certificate of refusal to ad- minister the oath, unless the plaintiff or creditor has an authorized officer present with the writ on mesne process or execution to take him into custody upon the issue of the certificate (102). The defendant or debtor cannot recognize (except upon appeal from a judgment on a charge of fraud (435), after the poor debtor's oath has been refused him (§ 36) ; and if seven days from the service of the former notice have not expired, he cannot get a new notice of his desire to take the poor debtor's oath issued by a magistrate to the creditor until the expiration of that period (§ 33) , (207-217). The details of examinations before magistrates are given quite fully above in the chapter on Arrest on Mesne Process in Actions of Contract (398 et seq.'), and in the chapter on the Examination of a Judgment Debtor before Arrest upon Execution (412 et seq.). ^ Unless, if he were a defendant arrested on mesne process, he gave bail (385-390). A defendant arrested on mesne pro- cess can also be released from jail upon giving bail even after both oaths have been refused him (P. S. c. 163, § 1). EXAMINATION OF JUDGMENT DEBTOE. 291 Assignment to Creditor before Oath. — The defendant or debtor who has applied to take the poor debtor's oath sometimes at the examination assigns whatever property he has, not exempt from being taken on ex- ecution, to the plaintiff or creditor, who then ceases to oppose his application, and the magistrate adminis- ters the oath. Such an assignment has been held to be legal because not under illegal duress.^ Teial upon a Charge op Fkaud. 432. Filing the Charge. — Under P. S. c. 162, § 49, at any time pending the examination for the poor debtor's oath, the creditor may file charges of fraud as therein provided. This section provides for a charge in addition to those of § 17. " Sect. 49. When either of the charges named in sec- tion seventeen, numbered second, third, fourth, fifth, and sixth, is made as therein provided, or when the plaintiff or creditor or any one in his behalf, at any time pending the examination of a defendant or debtor who has given notice of his desire to take the oath for the relief of poor debtors, files such charges in writing, subscribed and sworn to by the plaintiff or creditor or by some person in his behalf, the charges shall 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, and the magistrate may thereupon hear and determine the same. If a person arrested on execution, after such arrest, misspends or misuses to the amount of forty dollars, or to an amount equal to the sum for which he is arrested or committed, his goods, effects, or credits not exempt from being taken 1 Grimes v. Briggs, 110 Mass. 446 (1872), Tort for Conver- sion. 292 PEACTICB. on ezecution, but which cannot be attached by ordinary- process of law, without first having offered such goods, effects, or credits to the arresting creditor in satisfaction or part satisfaction of his debt, the charge of such mis- spending or misuse may be filed in the manner herein provided for filing charges of fraud. The plaintifi" or creditor shall not upon the hearing give evidence of a charge of fraud not made or filed as herein provided, nor of a fraudulent act of the debtor committed more than three years before the commencement of the original action." The -words " at any time pending the examination " seem to mean at any time before the magistrate has announced his decision. As has been suggested above (413), the examination is not necessarily closed by the "signature and oath of the debtor to the series of questions and answers which at any one moment constitute his examination up to that moment. But it is safer for creditors to follow the practice, which is to file the charges before the debtor signs his " exam- ination ; " for some magistrates might take a different view. 433. Order of Proceeding. — When the plaintiff or creditor wishes to have the defendant or debtor trie4 upon any of the charges of fraud set forth in §§ 17, 49, whether upon a charge contained in his affida- vit or any other of the charges which he may file, the order of the proceedings, in which the examina- tion for the poor debtor's oath and the trial upon the charge of fraud shall be conducted, seem to be at the discretion of the magistrate (49). When the creditor, or some one in his behalf, pending the examination, files with the magistrate one or more of the said charges, EXAMINATION OF JUDGMENT DEBTOR. 293 together with specifications, if the charge has not been made and specifically set forth in the affidavit under the same, sufficient to inform the debtor par- ticularly what he has to meet, and demands a trial thereupon, the , magistrate, after the evidence con- cerning taking the poor debtor's oath is in, or before beginning the examination of the debtor for the oath, if the specifications are filed soon enough, — the ma- gistrate determining the order at his discretion, — calls upon the debtor to plead guilty or not guilty, and if the debtor desires time to plead or to examine the charges and specifications, a reasonable delay is granted him. After the debtor has pleaded and is ready to proceed, the magistrate either hears the evi- dence of both parties under the restriction of § 49 as to evidence of charges not made or filed, or if an examination concerning the debtor's application to take the poor debtor's oath, and his fitness tb do so, has preceded the trial upon the charge of fraud, and the parties agree to submit the case upon the evi- dence then given, whether written or oral, or upon any part thereof, the magistrate takes such evidence into consideration, and thereupon, according to the preponderance of evidence (65), renders judgment of guilty or not guilty. This being upon civil process, the charge does not have to be proved beyond a reasonable doubt in order to entitle the creditor to a judgment of guilty against the debtor. The magistrate then announces his decision, whether to administer the poor debtor's oath or not. When the judgment is " guilty," at the trial upon a charge of fraud, it is not the practice to administer the poor debtor's oath, even if the debtor proves that he has no property (76). 294 PRACTICE. 434. Guilty. — Sentence. — Mittimus. — If the j udg- ment is "guilty," the creditor moves for sentence, and the magistrate sentences the debtor to confinement at hard labor in the house of correction^ for a term not exceeding one year, or to confinement in jail not ex- ceeding six months (P. S. c. 162, § 52). Then the magistrate issues a mittimus, according to the sen- tence, and, if the debtor is in jaU, the mittimus is deliv- ered to the jailer, and the debtor remains in jail under the sentence, except in certain cases of appeal de- scribed below. Form 24. Form for Mittimus after a Sentence of Guilty in a Trial upon a Charge of Fraud. COMMONWEALTH OF MASSACHUSETTS. 1 ss. To the Sheriff of the County of and his Deputies, and to the Const&hles of the City of , in said County, and to the Keeper of the Jail in the said City : GEEETING. These are, in the name of the Commonwealth of Massa- chusetts, to command you the said Sheriif, Deputies, and Constables, and each of you, forthwith to convey and deliver to and into the said jail, and the custody of the keeper .thereof, the body of , of , in the said County, together with a true and attested copy of this Precept : — For that, whereas the said has been arrested upon an execution in an action of contract issued from [^here describe the court'], dated -, in which execu- tion the said is named as the judgment debtor, and is named as the judgment creditor; and the said has applied to me, , a Master in Chancery, 1 It is not common to sentence either defendants or debtors to the house of correction. EXAMINATION OF JUDGMENT DEBTOR. 295 within and for the said County^ to take the oath for the relief of poor debtors, according to Chapter 162 of the Public Statutes of the said Commonwealth ; and due notice of the time and place fixed for the examination of the said debtor has been issued by me to the said creditor, and has been duly served upon [here name and describe the person upon whom service was made'\ by , a Deputy Sheriff i for the said County, as appears by his return thereof filed with me, and the said debtor and creditor have appeared before me accordingly; and, pending the examination of the said debtor, the said creditor has filed with me in writing, subscribed and sworn to by the said creditor,'^ the following charge of fraud, to wit : \here set out the charge, with its specifications in full as so filed] and the said charge has been read to the said debtor, and I have asked him whether he is guilty or not guilty of the fraud so charged against him ; and he says and pleads thereto that he is not guilty ; and I have heard the said charge and plea, and the evidence of both parties there- upon, and have duly examined the said debtor thereupon, and have determined the same and rendered judgment thereon, that the said debtor is guilty of the said charge : — Ifow I have sentenced him to confinement in the said jail for the term of months from the day of the date hereof. And you, the said keeper, are hereby required to receive the body of the said , sentenced as aforesaid, into your custody in the said jail, and him there safely to keep until the said term expires, or he be otherwise discharged in the due course of law. WiTXESs my hand at Boston aforesaid, the day of , in the year of our Lord one thousand eight hundred and eighty Master in Chancery. ^ Or Constable for , as the case may be. 2 Or bv , ia behalf of the said creditor. 296 PKAGTICE. officer's eetuen. In obedience to the within I have conveyed the within named to the jail, and left a true and attested copy of this mittimus and my return thereon with the jailer. ■ , Deputy Sheriff.^ Fees, $ . , Constable.^ Since, when the judgment is guilty of the charge of fraud filed, the magistrate (76) refuses to administer the poor debtor's oath to the debtor, he issues a certi- ficate of such refusal (Form 23), which is' then an- nexed to the execution. When, the examination is elsewhere than in jail, and the debtor is either in the custody of the officer who has arrested him (or is not under arrest, but subject to a recognizance, and the creditor has an officer in readiness to take him into custody), the mittimus and the execution, with the certificate of the magistrate's refusal of the oath, and any previous certificate, annexed, are delivered to the officer, who makes and attests a copy of them, and then takes the debtor to jail, and delivers him and the copy into the jailer's custody. 435. Appeal. — Different Rights under Appeal. — Giuilty. — Not G-uilty. — Property. — No Property. — ' Either party may appeal from the judgment of the magistrate to the Superior Court, P. S. c. 162, § 50, by simply stating in person or through his counsel to the magistrate that he appeals. But before the magis- trate can allow his appeal he must recognize according to § 51, "in like manner as from the judgment of a trial justice in civil actions," w:hich, under P. S. c. 155, § 29, is " within twenty-four hours after the entry of judgment." 1 As the case may be. EXAMINATION OF JUDGMENT DEBTOE. 297 " Sect. 50. When the hearing is had on the charges of fraud mentioned in the preceding section, and judgment is rendered thereon by the magistrate, either party may appeal to the superior court, in like manner as from the judgment of a trial justice in civil actions. The trial in the court appealed to shall be by a jury, unless the court, with the consent of both parties, hears and determines it without a jury. " Sect. 51. If the plaintiff or creditor appeals, he shall before the allowance of the appeal recognize with suf- ficient surety or sureties to enter and prosecute his appeal with effect, to produce at the court appealed to a copy of all the proceedings upon said charges, and to pay all costs if judgment is not reversed. If the defendant or debtor appeals, he shall recognize in like manner, and with the further condition, that if final judgment is against him he will within thirty days thereafter surrender him- self to be taken on execution and abide the order of the court, or pay to the plaintiff or creditor the whole amount of the original judgment against him." A. The different results of a trial upon a charge of fraud are as follows : Take the two cases where the debtor is found guilty of the charge of fraud by the magistrate. 1. If the magistrate finds that the debtor has prop- erty to the amount of twenty dollars not exempt, in the examination for the poor debtor's oath, and finds him guilty of the charge of fraud, the oath is refused on both grounds ; and although the debtor can appeal, and his appeal can be allowed upon his recognizance under § 51, it seems that he cannot be released if under arrest or in jail (74), and if he has been re- leased on a former recognizance under § 28 or § 36, he can be taken on the execution with the certificate 298 PRACTICE. annexed, and (74, 76) committed to jail, if the officer is present with the execution when the magistrate completes the certificate. Hence the practice is to continue to hold him, or, if he is out on a recognizance, to take him again and hold him in jail until he takes the poor debtor's oath, or is discharged by order of the creditor, or because of the creditor's neglect to give the jailer security for the debtor's support. The debtor is thus held on the execution whether he is found guilty or not guilty at his final trial in the, Superior Court. If he is found not guilty there, he can apply to take the poor debtor's oath just as he might have done if he had not been tried for fraud, subject to the seven days' rule of § 33. If he is found guilty in the Superior Court, and sentenced, he can at the expiration of his sentence renew his appli- cation for the oath under § 52. But the creditor may, upon motion in the Superior Court, obtain an execution against the debtor as described below (Form 26), instead of a sentence. 2. If the magistrate finds that the debtor now has not property to the amount of twenty dollars not ex- empt in the examination, even if he formerly had such property fraudulently conveyed, concealed, or otherwise disposed of, but finds him guilty of the charge of fraud, the oath is refused on the single ground of guilt of the charge of fraud, and the debtor can appeal and be released on a recognizance under § 51, and then cannot be held or taken on the execu- tion. But if he is found guilty of the charge of fraud on a final trial in the Superior Court, and surrenders himself or is surrendered by a surety according -to the recognizance, he can then be taken. § 51. But see 436. (75,76,77). EXAMINATION OF JUDGMENT DEBTOB. 299 If, however, he is found guilty, but does not sur- render or is not surrendered according to his recog- nizance, then the creditor moves for and obtains from the Superior Court a warrant to a proper officer to bring him into court. The following form has been used in the Superior Court for Suffolk County .1 FoEM 25. COMMONWEALTH OF MASSACHUSETTS. Suffolk, ss. To the Sheriffs of our several Counties, or their , Deputies : GREETING. Wheeeas at a Term of our Superior Coui-t of the County of Suffolk, begun and held at Boston within and for our County of Suffolk, on the first Tuesday of , a. d. 18 — , to wit, on the day of , a. d. 18 — , in the matter of , appellants, against , of , the said was found guilty of fraud by the verdict of the jury on cer- tain charges of fraud filed by the said in this Court, at the Term thereof, on the appeal of the said , from the decision of the examining magistrate, l_here may be added (and the said having excepted to the ruling of the said Superior Court in certain matters of law to be passed upon by the Supreme Judicial Court of this Com- monwealth for the said County; and the said Supreme Judicial Court at the Term, a. d. 18 — , having overruled the said exceptions, and affirmed the rulings and proceedings of this Court, and having ordered the same to be remitted to this Court for further proceed- ings,)] and the said having not abode for the 1 This form has been kindly given to me by my friend, Joseph A. Willard, Clerk of the Superior Court for the County of Suffolk. 300 PBACTICE. judgment of this Court to be passed in the premises, but having made default, and the said , by their attor- ney, having moved this Court for a Capias to issue, which motion having been allowed, — These are therefore to command you and each of you, on view hereof, to arrest the body of the said , and him safely keep until you have him before our said Su- perior Court, in the said County of Suffolk, at the earliest day of , at the said Boston, to abide the order and judgment of the said Court in the premises. Witness .^ Esquire, at Boston, the day of , in the year of our Lord one thousand eight hundred and . Clerk. The warrant is delivered to the officer who arrests the debtor and brings him into court. When he is brought into court, the court will usually act accord- ing to the crg'ditor's motion, and will either sentence the debtor under § 52, and issue a mittimus similar to that in Form 24 (435), or will forbear from senten- cing him, and will have entered upon the docket an order in the words of § 52, that the debtor " shall have no benefit from the proceedings under this chapter," to wit: Chapter 162 of the Public Statutes; and also the judgment will be entered substantially in the following form : — ' FoEM 26.'' It is therefore considered by the Court that the judg- ment of the [here describe the magistrate'], that the said debtor is guilty of the charge of fraud numbered 1 The name of the Chief Justice of the Superior Court. " This form also has been kindly furnished by Mr. Willard. EXAMINATION OF JUDGMENT DEBTOR. 301 , be affirmed, and judgment is hereby rendered that the said is guilty of the said charge af fraud as found by the said verdict, and that execution issue against the body of the debtor in favor of the creditor for the amount of the original judgment and costs, with interest thereupon, amounting to the sum of , together with the costs of these proceedings taxed at . Then the execution issues accordingly. B. Next take the two cases where he is found not guilty of the charge of fraud. 1. If the magistrate finds that the debtor has prop- erty to the amount of twenty dollars not exempt in the examination, whether such property is- fraudu- lently conveyed, or concealed, or otherwise disposed of or not, but is not guilty of the particular charge of fraud filed, and the oath is refused on the ground of the possession of property, then the creditor can appeal and have his appeal allowed upon recognizing under § 51, and the debtor may be held on the execu- tion if under arrest or commitment, or, if he has been released on a recognizance, may be taken on the ex- ecution, if the officer is present with it when the magis- trate completes his certificate of refusal. Then the debtor is held subject to the same rules as those stated above in A. 1. 2. Or if the magistrate finds in the examination that the debtor now has no property not exempt, al- though he may formerly have had property fraudulent- ly conveyed, concealed, or otherwise disposed of, and is not guilty of the charge of fraud, he then finds that the debtor "is " entitled to his discharge " (§ 39). Then although the creditor may appeal and have his appeal allowed upon recognizing under § 51, never- S02 PJBACTICB. theless the magistrate administers the oath and the debtor is discharged (75) from the arrest or recogni- zance under which he may be. C. Sometimes both parties appeal; for instance, when a defendant or debtor is found guilty upon one charge and not guilty upon another charge {Note after 77). 436. Serving out Sentence, and New Applieaiion for Oath. — If the debtor who has been found guilty does not appeal, or if, having appealed, he fails to re- cognize under § 51, he must remain in jail, if he has been sentenced to jail, and when he has not yet been conveyed thither he must be taken to jail, or if he has been sentenced to the house of correction, he must be taken there, and he is kept at either place until the period fixed by his sentence has expired (434). After the expiration of his sentence the debtor, if still held in jail upon the execution, may renew his application for the oath for the relief of poor debtors. P. S. c. 162, § 52. But in cases where the debtor at his examination has succeeded before the magistrate in being found not guilty of charges of fraud and in taking the oath, but afterwards has been found guilty in the Superior Court, and there sentenced, it would seem that. at the expiration of the sentence the debtor should be at once discharged. This would be consistent with his rights (76), to be at large upon a recognizance under § 51, even after the oath has been refused him, when a magistrate has found in his favor upon the issue of property, and the sole reason for the refusal is that he is found guilty by the magistrate of the charge of fraud. Even when the charge of fraud is that he has EXAMINATION OF JUDGMENT DEBTOR. 303 fraudulently convej'ed, concealed or otherwise dis- posed of some part of his estate, if the magistrate finds him not guilty, and afterwards on appeal the jury finds him guilty, the verdict of the jury does not necessarily imply that he has any property " now " (§ 40), or had any property at the time of the magis- trate's examination and judgment (437). This is the one issue upon which the magistrate's judgment is conclusive (76,77). Therefore to discharge him upon the expiration of his sentence does not injure the creditor, who would seem to be prevented, by the pre- vious taking of the poor debtor's oath, from holding his body upon the execution. The interest of the Commonwealth in the punishment of fraud has been satisfied by the punishment which expires with his sentence. Perhaps this question is not likely to arise often, for a jury would hardly be quick to find a debtor guilty of a charge of fraud after a magistrate had found him not guilty. Nevertheless such a rever- sal has occurred, and the principle should be con- sidered. 75 qualifies § 52, " no benefit." The common cases in Suffolk County are those where the oath has been refused by the magistrate. Hence in the familiar practice the new application for the oath under § 52 is made when the sentence ex- pires. 437. The above statement that a judgment of guilty on appeal would not imply property " now," or at the time of the examination, is true, notwithstanding the fact that, in Mowry's Case,i where the magistrate found the debtor guilty of a charge of fraudulently convey- ing his property, and found and certified also that he 1 Mowry's Case, 112 Mass. 394 (1873), Habeas Corpus (76). 304 PEACTICB. " has " property so conveyed, it was said by the learned judge that a contrary judgment in the Su- perior Court would " by necessary implication " ad- judge that the debtor had no property so conveyed. Although that view may have corresponded to the facts in that case, it is questionable whether that in- ference strengthens the opinion in the case. In re- spect to this inference, however, in the opinion in Mowry's Case, it seems to the present writer that it was a difficulty caused by an unnecessarily, if not un- reasonably divided, certificate of the magistrate. The magistrate's certificate ran as follows : " That in my opinion, said John Mowry has not any estate, real or personal, to the amount of twenty dollars, except the estate, goods, and chattels which are by law exempted from being taken on execution ; but that he has other property now conveyed, concealed, and deposited [sic] of, with design to secure the same to his, own use, and to defraud his creditors. And I have, after due examination of said John Mowry, refused to ad- minister to him the oath for the relief of poor debt- ors." (See the original papers in the Social Law Li- brary in Boston.) Then the opinion (p. 398) alludes to the first part of the certificate as deciding " the first issue, and the only issue which is within his " (the magistrate's) " final and exclusive jurisdiction." But is there strictly more than one issue in respect to the defendant's or debtor's " now " having property, whether it be open or concealed, honestly held, or fraudulently conveyed away? The divided form of the certificate provided for by G. S. 124, § 22, and P. S. c. 162, § 40, suggests a division of the issue be- tween property which the debtor "has not," and • EXAMDTATION OF JUDGMENT DEBTOK. 305 property which he "has not . . . now conveyed." But this second part appears to be rather a specifica- tion to show that the first part means all that it im- plies, than a determination of a new issue. This suggestion is made with some hesitation ; because, if it be true, the reasoning on pp. 397-399 of the opinion in Mowrj's Case is not more logical than the magis- trate's certificate, and involves the same inconsistency. The magistrate found substantially that the debtor had not and had property. The opinion says, sub- stantially, the certificate is conclusive that he had not, but it is not conclusive that he had property, be- cause the magistrate's judgment might be reversed. Therefore he had not any property. This needs ex- planation. But, as is suggested in 77, this does not necessarily ignore the fact that evidence is admissible in the examination for the oath which is excluded by the three j'ears' rule of the trial under (G. S. c. 124, § 81) P. S. c. 162, § 49, because it is evident from the language of the opinion that the reasoning is di- rected to the peculiar certificate of the magistrate, the property found wherein is construed by the opinion to be such as " can only mean property conveyed away as specified in that charge on which alone the magistrate found him guilty " (p. 399). But suppose that the fraudulent act by which a debtor had con- veyed property, of which he still had the equitable title at least, had been committed " more than three years before the commencement of the original ac- tion," and that the debtor had ever since then been honestly trying to help the creditor to get it back for both of them, and that upon that evidence the magis- trate should find in the examination that he has prop- 20 306 PEACTICE. erty " now," conveyed fraudulently, and should also find him guilty of a charge of fraud for an act com- mitted within the three years of § 49 concerning the same conveyance. Then if the Superior Court, on ap- peal, sliould find him not guilty of the charge of fraud within the three years, the magistrate's finding that he has property "now" upon evidence of acts com- mitted back of the three years, would not allow the inference that he has not property. On the contrary, the magistrate's certificate would be conclusive upon the facts found that he " has " property, " now," fraudulently conveyed. And such would be the fact. In such a case, Mowry's Case would hardly be an au- thority for releasing the debtor from an arrest upon the execution even after a recognizance on appeal (74). If these suggestions be sound, then the words, " the first issue," on p. 398 in Mowry's Case, must not be taken as decisive that there is more than one issue concerning the possession of property in the examina- tion for the poor debtor's oath, but must be explained simply by the peculiarities of the certificate in that case. Otherwise they might lead to confounding the examination for the oath which concerns property as the onlj' issue — fraud being incidental evidence only — with the trial upon the charge of fraud, which con- cerns fraud as the only issue, property being inci- dental evidence only. The fact that the judgment of guilty of the fraud prevents the oath is prospective and is for the purpose of punishment, as appears from the words of § 52 : " he shall have no benefit from the proceedings under this chapter." The opinion (p. 398) attempts to distinguish the facts in Fletcher v. Bartlett, 10 Gray, 491 (74), by EXAMINATION OF JXTDGMENT DEBTOE. 307 saying, " if the magistrate refuses to admit the debtor to the oath upon the ground that he has property in his possession not exempt." It is true that the report of that case says the oath was refused to the debtor " on the ground that he possessed property," but does this necessitate the assumption that this meant property not fraudulently conveyed or concealed ? This ques- tion shows that it is not entirely clear that the facts in Fletcher v. Bartlett were essentially different from those in Mowry's Case. Indeed, Chief Justice Shaw, whose action decided Fletcher v. Bartlett, said dis- tinctly : " Such appeal did not carry up the whole case, but only the finding upon the charge of fraud." Now the charge of fraud is of fraud and not of prop- erty. But in arguing that a judgment of not guilty in the Superior Court would imply that there was no property, the learned judge in Mowry's Case seems to have entered into at least a part of the " whole case " which the appeal did not " carry up " in order to illustrate the justice of the decision. It would hardly seem that by such an inference the Superior or the Supreme Judicial Court could contradict the ac- tual finding of an inferior magistrate upon a point of fact which would have been within his sole and exclu- sive jurisdiction if he had found it ia the examination for the oath upon evidence of acts " more than three years before the commencement of the original ac- tion " (§ 49), or even if he had not stated it to have been found otherwise. In brief, the court cannot as- sume to know, without the magistrate's statement, what the evidence is upon which the magistrate's certificate is based. The opinion in Mowry's Case does not pretend to assume this; but its obscurity 308 PKACTICK. lies in its following the lead of the magistrate's di- vided certificate. The true method of construction, however, is to find consistency in an opinion if it can be found by a reasonable interpretation of language. The following suggestion is submitted as a point in Mowry's Case which avoids inconsistency with other cases and the statutes. The point of construction decided by_ Mow- ry's Case may perhaps be stated as follows : If a magis- traiJe's certificate, refusing the poor debtor's oath, states that the debtor has not property to the amount of twenty dollars, not exempt ; and also states that he has property fraudulently conveyed, and if there has been a finding of guilty upon a charge of a fraud- ulent conveyance, the court will construe the second part of the certificate to be synonymous with the judgment of guilty of the charge of fraud, and not as a finding of property in the examination. 438. My friend, James B. Richardson, one of the Masters in Chancery for the County of Suffolk, has kindly allowed me to add here his rules for practice, which were printed several years ago.^ 1 Thefewfollomng Rules of practice under our Statutes relating to "arrest, imprisonment, and discharge of poor debtors " have been printed with a view to furnish irt formation to parties and counsel on points of constant inquiry, and in the hope, also, that they may lead to a greater uniformity of practice in such proceedings. Boston, October, 1876. The examination of a defendant or debtor in actual custody shall have precedence in respect to time and attention of coun- sel, of all other business, except when actually occupied in a trial in court, unless delay is assented to by such defendant or debtor; and in such case of actual custody or imprisonment, no 1 EXAMINATION OF JUDGMENT DEBTOK. 309 I motion by the plaintiff or creditor for postponement or delay on the ground of absence of any witness or material evidence shall be granted, unless supported byaflSdavit stating particularly the facts which it is expected to be shown by such absent witness or evidence, the grounds of such expectation, the name and address of such witness, and the means which have been used to procure such witness or evidence; and such motion shaU not be granted if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit. n. Adjudication in bankruptcy or insolvency of the defendant or debtor may be deemed to be sufficient ground for the delay or adjournment of the examination to such time as an assignee may be appointed, and the assignment of his estate ; but after such assignment has been made, the examination shaU not be further delayed or adjourned, merely to await further proceed- ings in bankruptcy, or insolvency unless agreed to by all parties. In the case of actual imprisonment of the defendant or debtor in jail, the examination shall not as a rule be delayed or put ofE by reason of proceedings in bankruptcy or insolvency by or against him after the warrant has been issued in bankruptcy or insol- vency, and proof of the payment of the fees for the service thereof; but the defendant or debtor may then be discharged, upon taking the oath, if otherwise entitled thereto. If charges of fraud are filed, the defendant or debtor shall be entitled to a trial at once, whether proceedings in bankruptcy or insolvency are pending or not. m. In the examination of the defendant or debtor he shall answer interrogatories put to him, vrithout consulting with or being prompted by counsel, unless upon motion or application to the magistrate, that a correct answer to any interrogatory involves a question or consideration of law, or law and fact, and that he desires to consult with counsel before answering. And if it shall appear to the magistrate that a correct answer involves such question or consideration of law as well as fact, the magis- trate may allow consultation with counsel. The defendant or 310 PRACTICE. debtor shall have the right to the closing argument except upon trials on charges of fraud, i IT. If, pending the examination, charges of fraud are filed after the defendant or debtor has put in his evidence or any part of it, he shall have the right to put in any new or further, perti- nent to the issues raised by such charges, and upon the issues on such charges, the plaintiff or creditor, having the burden of proof, shall have the right to the closing argument. V. Three dollars, in addition to the fees provided by statute, shall be paid to the magistrate for each day that he shall attend any hearing or examination at the jaU, which shall be paid in advance by the party requesting such attendance at the jail. J [The rule remains the same under P. S. c. 162, in examination after arrest, when the defendant or debtor has applied to take either oath or both oaths. But this rule was written before the act of 1877, c. 250, now incorporated in P. S. c. 162, §§ 18-25. In the examination thereunder, the judgment creditor has the burden of proof, and consequently the closing argument. — C. E. G.] ADDITIONAL FORMS. 311 ADDITIONAL FORMS. FoEM 27. (See 435.) Form for "A Copy of all the Proceedings" (P. S. c. 162, § 51) to be produced at the Superior Court upon the Prosecution of an Appeal by Either Party after a Trial upon a Charge of Fraud. COMMONWEALTH OF MASSACHUSETTS. , ss. [Here insert a recital after the manner of the recital in the mittimus {Form 24), of all the proceedings before the magistrate from and including the time when the defend- ant or judgment debtor obtained from the magistrate the notice to the plaintiff or judgment creditor of his desire to take the oath for the relief of poor debtors, to and in- cluding the time after the magistrate's judgment when one or the other party appealed therefrom and recognized upon such appeal. Then annex a copy attested by the magistrate of all the papers referred to, and state that such copy is a part hereof.] Master in Chancery. Among such papers would be regularly the writ upon which the arrest was made, whether the original writ on mesne process, or a writ of execution, with all the writing and print upon it, including the declaration inserted in the original writ if the arrest was upon mesne process, and including the affidavit and certificate, the officer's return, and all papers annes:ed to the writ ; the original notice with the officer's return upon it; the charge of fraud filed, subscribed, and sworn to, with the jurat an- nexed to it; the certificate of the poor debtor's oath 312 PKACTICE. having been administered or refused; the mittimus, if one was issued, and the extended memorandum of the Recognizance on the Appeal by either party. This Re- cognizance should regularly'repeat the recital of these pro- ceedings (just as they are recited above in order that the memorandum of recognizance may be complete in itself), in the manner of Form 5, and state the condition accord- ing to § 51, for one or the other party. Form 28. (See 405, 406.) Customary Form for Certificate of Refusal to grant Certificate authorizing Arrest after Examination of Judgment Debtor. COMMONWEALTH OF MASSACHUSETTS. ss. I hereby certify that the within-named judgment cred- itor , having made application to me for a certificate authorizing the arrest of , the within-named judg- ment debtor , and , said debtor , having been duly notified to appear before me for examination as provided in chapter 162 of the Public Statutes ; and , said debtor , having appeared before me at the time and place fixed for said examination, and having been examined ^ as provided in said chapter, and it not appearing ^ that has estate or property of any kind above the amount of twenty dollars, not exempt from being taken on exe- cution ; and it also appearing that has obeyed all the lawful orders and requirements made by me, I hereby refuse to grant a certificate authorizing said debtor's arrest on the within execution. Witness my hand this day of a.d. 18 — . Fee, $1. Master in Chancery. • Or, if the creditor does not appear, and there is no examina- tion, state the fact, and omit the following statement about property, and retain the statement of obedience. 2 Or if he had property, and obeyed the magistrate's orders concerning it, state the fact. ADDITIONAL FORMS. 313 FoEM 29. (See 426.) Form for Certificate of Failure to recognize or give Bail on Arrest. COMMONWEALTH OF MASSACHUSETTS. 88. , A.D. 18 — . The •within-named , having been arrested and brought before me by , was by me interrogated, and he declared that he did not desire to take any oath, or to recognize or give bail ^ for his appearance at any time. And said failed to recognize or give bail ' in any manner. Fee, $1. Master in Chancery. Form 30. (See 372, et seq.) Customary Form for Affidavit and Certificate for Arrest of an Attorney upon Mesne Process. COMMONWEALTH OF MASSACHUSETTS, , ss. , A.D. 18—. I, , in behalf of the plaintiff named in the annexed writ, do on oath declare that , the plaintiff , ha a good cause of action against the defendant , therein named, and a reasonable expectation of recovering a sum amounting to twenty dollars exclusive of all costs which have accrued in any former action ; and that the said de- fendant is an attorney at law, that the debt sought to be recovered is for money collected by said defendant for the plaintiff, and that the defendant unreasonably neglects to pay the same to the plaintiff. COMMONWEALTH OF MASSACHUSETTS. 83. A.D. 18—. Personally appeared the above-named before me, and made oath to the truth of the above affidavit by him 1 Erase unnecessary words in case of arrest upon execution. 314 PEACTICE. subscribed ; and I certify that I am satisfied the same is true. And, satisfactory cause having been shown, I authorize the arrest of the said defendant * to be made after sunset. Fee, $1. Master in Chancery. 1 It is customary to add, " if his arrest is authorized by law; " but that is surplusage (4, 371 a). APPENDIX. APPENDIX. A CHRONOLOGICAL LIST OF STATUTES OONCEENHfG ARREST, IMPRISONMENT, AND DISCHARGE UST CIVIL PROCESS. "With Memoraitda of some PotNTS ln them fob Convenience in find- ing OUT which Statutes to examine foe the Histoky of the Setebal Paets of the Poob Debtoe Law of Massachusetts. [rfte jigures in fult-faced type wMck follow the memoranda of vmny of the chapters in this list indicate the preceding sections of this booTc which cite such chapters or parts of them.'] The Compact, Oharter and Laws of the Colony of New Plymouth. Boston, 1836, p. 254. Actions, c. rV. § 11. Writs may be served by attachment of the person or property, or both. Revised and published June, 1671. This added the right of attachment of goods or other estate even when the person was to be found. The General Laws and Liberties of the Massachusetts Colony. Cambridge, 1672. This is referred to below as Ed. 1672. The Charters and General Law of the Colony and Province of Massachusetts Bay. Boston, 1814. This is referred to below as Ed. 1814. Ed. 1814, c. 57, p. 132 ; Ed. 1672, p. 74. An act respecting imprisonment and baU. Dated 1641. Bail allowed before sen- tence, except in certain cases. Ed. 1814, c. 8, pp. 48, 49 ; Ed. 1672, pp. 6, 7. Acts respecting arrests and bail. Dated 1641, 1647, and 1662. § 1. None to be kept in prison for debt that have not to sat- isfy, — excepting prisoner kept at his own charge. Appearance of some estate required. An oath provided for. " But shall 318 APPENDIX. satisfy by service if the creditor require it; but shall not be sold to any but of the English nation." § 2. Prisoner's victuals. If prisoner has not five pounds, plaintiff to provide. 1662, § 3. Complaint of keeper giving too much liberty. License of court necessary. Penalty for escape. 1662, § 4. Keeper's liberty to take bail. Ed. 1814, c. 67, pp. 153, 155; Ed. 1672, p. 104. Acts respect- ing marshals, their powers and duties. § 8. Officer may take the person of the debtor if he will not disclose goods or land. Dated as 1647. Ed. 1814,c. 9,p. 49. Acts respecting attachment, summons, &c. § 5, pp. 50, 51. Person surrendered to be secured until judg- ment discharged. Dated October, 1650. Ed. 1814, c. 74, p. 172. Acts directing how debts shall be paid. Ed. 1672, p. 120; § 1. If debtor does not make satisfaction in kind, according to covenant, or in debt and damages, the creditor may imprison him or take property upon execution. Dated August, 1654. Ed. 1814, c. 80, pp. 177, 179 ; Ed. 1672, p. 128. Acts respecting prisons, prisoners, and houses of correction. § 5. If plaintiff does not secm-e to the keeper the necessary expenses during im- prisonment, the prisoner may take his oath before any magis- trate that he is not worth five pounds, and be discharged. Dated as passed 1663. Ed. 1814, c. 98, pp. 192, 193; Ed. 1672, p. 144, § 1. Acts respecting sureties and goods attached. Prisoner surrendered to be secured till judgment discharged, provided execution be taken out and executed within one month after judgment, except in case of strangers. Dated May, 1659. § 3. Action against sureties. Dated May, 1672. Ed. 1814, c. 86, pp. 184, 185; Ed. 1672, p. 134. Acts re- specting sailors. §§ 1, 2. Their exemption from any process or attachment for debt incurred without master's knowledge and consent. Dated as passed October, 1682. The Acts and Resolves of the Province of Massachusetts Bay; Vols. 1-4. Boston, 1869. 1692-34C.il. An act setting forth general privileges. Art. 8. Persons taken in execution for debt excepted from general pro- vision for bail. Passed Oct. 13, 1692. CHEONOLOGICAL LIST. 319 1602-3, c. 41, §§ 7, 8. An act for regulating the former as- sessment and for granting an additional supply of money. Im- prisonment for non-payment of taxes. Passed Dec. 15, 1692; published Dec. 16, 1692; expired Feb. 28, 1693-4. 1693-4, c. 1. An act relating to sureties upon mean process in civil actions. Passed Nov. 16, 1693 ; published Nov. 29, 1693. When bail has been given, not only for appearance, but also to abide judgment. Surety to satisfy judgment " at the time of entering up judgment," unless he brings principal into court and moves to be discharged. Scire facias against surety allowed ■within twelve months. Remedy against debtor. 1694^5, c. 2, §§9, 10. An act for granting unto their Majes- ties a tax of twelve pence a poll, and one penny on the pound for estates. Imprisonment for non-payment of taxes. Passed June 18, 1694; published June 20, 1694; expired Nov. 1, 1694. 1696, c. 16. An act for granting unto his Majesty a tax upon polls and estates. § 4. Imprisonment for neglect of duty in assessors, sheriffs, constables, or collectors. Passed Dec. 18; published Dec. 19, 1696; expired Aug. 1, 1697. See also 1699-1700, c. 26, § 17. Passed March 20; published March 23, 1699-1700; expired July 1, 1703. 1698, c. 11. An act for the relief and release of poor prison- ers for debt. Passed June 21, 1698; published June 27, 1698; repealed 1725-6, c. 9. § 1. Justices of the peace on petition of prisoner to require jailer to bring his body without delay not over a mile from the prison, to certify "the cause and causes of imprisonment." Form of oath. § 2. Prisoner, on taking said oath, to be remanded to prison. Then notice to creditor. Examination. Discharge. Provision for pleading. § 3. But, notwithstanding said oath, creditor may have pris- oner kept in jail three months upon furnishing support. In default of support or of proof of property, discharge at end of three months. § 4. Prisoner convicted of false swearing in such oath. New process to issue. Court "shall remand said prisoner into the prison whence he or she was dismissed, there to remain in exe- cution " as before. Execution^ upon lands, &c., after discharge and before remanding also good. 320 APPENDIX. § 5. Judgments against lands, &c., good notwithstanding discharge. Penalty for jailer's refusal or delay to bring or discharge. § 6. No discharge before a month's imprisonment. Creditor not obliged to support prisoner having relations bound and. able to do so. § 7. Creditor may get order of justices for debtor (being a person formerly using any handicraft, or day laborer, and not having a wife or family) to satisfy debt by service for a certain term. Not to extend to executions for fines. § 8. Such discharge not to free or discharge any other person liable for the debt, or any part of it, as principal or surety. Before any discharge, debtor to subscribe and swear before jus- tices to schedule of his effects, including debts due to him. Schedule to be returned to next sessions. Creditors may sue upon said debts in prisoner's name and render surplus to pris- oner. 1699-1700, c. 26. An act directing how rates or taxes, to be granted by the General Assembly, shall be assessed and col- lected. §§ 13, 14, 15, 16, 17. Imprisonment for non-payment of taxes. Passed March 20, 1699-1700; published March 23, 1699-1700 ; expired July 1, 1703. 1700-1, c. 2. An act for the (better) regulating of prisons, and to prevent escapes. § 5. Persons assisting escape liable for debt, and also to " be fined or corporally punisht." § 6. Jailer voluntarily suffering escape subject to above pen- alty. If prisoner be returned by guilty party, then only fine. Remedy against prisoner. § 7. For negligent escape, jailer to be fined and to pay debt. Eemedy against prisoner. § 8. Fines to be applied to repairing, &c., prison. § 9. For escape through defect of prison after March 25, 1701, the county to pay the debt. Remedy against prisoner. Passed June 17, 1700; published June 29, 1701. 1701-1702, c. 5. An act for regulating of tryals in civil causes. § 11. No person arrested on mesne process to be held in prison above thirty days after judgment " unless such person be continued there by having his body taken in execution," and no discharge within the thirty -days, "to the intent his body may be taken in execution," except by written order of plain- CHRONOLOGICAL LIST. 321 tiff. Goods or other estate attached not to be discharged from " arrest " under thirty days after judgment. Passed and pub- lished June 12, 1701. 1703-4, c. 3. An act for granting unto her Majesty a tax upon polls and estates. § 7, reviving and continuing Act 1699- 1700, c. 26. Imprisonment for tax. Passed July 27, 1703; published July 31, 1703; expired June 29, 1706. 1705-6, c. 1. An act for the ease of prisoners for debt. Passed June 30; published July 6, 1705; expired June 30, 1708. Preamble: "Forasmuch as, in divers counties within this province, the prisons are so small that when there are any num- ber of prisoners there are not rooms or apartments sufficient for the receiving and securing of them, without lodging felons and other criminals, and prisoners for debt, together in one and the same room, which ought not to be; wherefore whilst other and better provision can be made in that respect." § 1. Prisoner for debt, "either upon mean process or exe- cution," allowed a chamber and liberty of the yard, "in the daytime, but not to pass without the limits of the prison," upon payment of rent and giving bond to sheriff. Form for condi- tion of bond. § 2. Upon escape, whole penalty of bond, " without chan- cery," to be for creditor, and to be assigned to him by sheriff with power to sue and recover. Provision for sureties. § 3. This act to remain in force three years. 1705-6, c. 7. An act in addition to and explanation of the act relating to sureties upon mean process in civil actions (1693-4, 0. 1). Passed Dec. 1. § 1. At any time before judgment in cause be affirmed upon scire facias the surety may bring the principal into court and move to be discharged. Court to order principal into sheriff's custody, to be detained thirty days "that so the creditor by that time may take his body in execution if he think fit." After thirty days " discharge upon the payment of his prison charges." Sureties to pay costs and be discharged. 1706-7, c. 2. An act for better securing the payment of prison charges. Passed July 12; published July 15, 1706. Preamble: " Whereas persons are of ttimes arrested and im- prisoned for debt, or pretence thereof, not having wherewith to pay their prison charges, and the goaler or prison-keeper is con- 21 322 APPENDIX. strained to feed and support them at his own charge, to his great loss ; for prevention whereof " : — Upon imprisonment upon mesne process the plaintiff, or his attorney "or lawyer," "in case the principal be out of this province or government," shall be liable for necessary charges, "no further prosecution being had thereon to a judgment in law." 1706-7, c. 3. An act for reviving and continuing the act (&c.) 1699-1700, c. 26. Imprisonment for taxes. Passed July 5, 1706; published July 15, 1706; expired July 5, 1709. 1709-10, c. 1. An act reviving Act 1699-1700, c. 26. Im- prisonment for taxes. Passed June 14, 1709; expired June 29, 1716. 1712-13, c. 6. An act to prevent the oppression of debtors. " Good and lawful bills of credit on this province "to be legal tender for debts made since Oct. 30, 1705, or before Oct. 30, 1715. " Specialties and express contracts in writing always excepted." No person after such tender "shall be lyable to have execution served and levyed upon his estate or person " for the debt. Passed November 8; published November 11, 1712. 1716-17, c. 4. An act reviving and continuing Act 1699-1700, 0. 26. Imprisonment for taxes. Passed June 26, 1716; ex- pired Jane 30, 1717. 1716-17, c. 8. An act in further addition to an act entitled " An Act relating to Sureties upon Mean Process in Civil Ac- tions," made and passed at a session of the General Court or Assembly the eighth of November, 1693, in the fifth year of the reign of King William and Queen Mary. Writs of scire facias may be served upon sureties within two years after trial. Passed June 19, 1716. 1717-18, c. 5. An act for reviving and continuing an act, &c. , (1699-1700, c. 26). Imprisonment for taxes. Passed June 17, 1717 ; expired June 30, 1722. 1718-19, c. 15. An act for the ease of prisoners for debt. Passed November 19; published December 6; expired Dec. 6, 1721. § 1. Prisons to be made large enough to have apartments for prisoners for debt separate from felons and other criminals. § 2. Chamber. Liberty of yard in daytime. Kent. Bond to sheriff. Form of condition of bond. CHEONOLOGICAL LIST. 323 § 3. The -whole penalty for creditor, "without chancery." Bond to be assigned. § 4. Sureties to be approved. § 5. This act to continue for three years. (See 1705-6, o. 1, for a similar statute.) 1722-23, 0. 4. The act of 1699-1700, c. 26, (imprisonment for taxes), and the act of 1718-19, c. 15 (for the ease of prisoners for debt), re-enacted. Passed July 5; published July 9; expired July 3, 1730. 1725-26, c. 9. An act for repealing an act entitled, " An act for [the] relief and release of poor prisoners for debt ' ' (1698, c. 11). "Because," as the preamble says, "it is found by experience that the said act, instead of answering the good intention afore- said, has been a shelter to vicious and improvident persons, a great encouragement to idleness and ill-husbandry, and too much a temptation to perjury, as well as injurious and offensive to many honest creditors." Passed Dec. 10,1725; published Jan. 3, 1725-26. 1727-8, c. 9. An act for the relief of poor prisoners for debt. Passed Dec. 28; published Dec. 30; expired Dec. 30, 1729. Preamble : ' ' Whereas, by the law of this province, no provision is made for the support of prisoners for debt who have not wherewithal to subsist themselves in prison, whereby such pi-is- oners may greatly suffer in goal; for prevention whereof: " §1. When prisoner "committed for debt or damages upon execution " shall complain to jailer that he has not sufficient "to support him or her self in prison," the jailer, without delay, to carry the body of the prisoner before the next justice of the peace. Form of poor debtor's oath. After prisoner takes that oath, the keeper to set prisoner to work. Jailer to be paid from earnings for support for three months; surplus to prisoner. § 2. Justice to give certificate of oath "within forty days next after taking the same " to prisoner, to be served on creditor or representatives. § 3. If, within three months, creditor does not find property or disprove oath, then, unless he pays prisoner certain sum for prison expenses weekly, prisoner to be discharged. § 4. Penalty for jailer's refusal or delay to discharge. § 5. Creditor may get order of justices for ' ' his or her debtor (being able of body to labor, not having a husband, wife, or f am- 324 APPENDIX. ily)" to satisfy debt by service; . . . " and the creditor is hereby empowered to detain and hold him in service during such term." § 6. This act not to extend to executions for fines upon single persons. § 7. This act to continue for two years. 1730, c. 1. An act directing how rates, &c. §§ 13-17. Imprisonment for non-payment of taxes. Passed Oct. 3; pubUshed Oct. 7, 1730. 1730, c. 4. An act for the ease of prisoners for debt. Passed Oct. 3, 1730; published Oct. 7, 1730; expired Oct. 7, 1735. (Similar to 1718-19, c. 15.) § 3. " To recover his just debt and damage," but not whole penalty. § 4. To continue for five years. 1732-33, c. 7. An act for the relief of poor prisoners for debt. Passed Jan. 4 ; published Jan. 6, 1732-33 ; expired March 27, 1736. § 1. Upon the prisoner's complaint of not having sufficient means of support, the jailer to apply to a justice for a notification to be served on the creditor or creditors (if within twenty miles) of the intended "caption of his or her oath." Then jailer, " without any unnecessary delay," to take prisoner before justice. Form of oath. Jailer to set prisoner to work to pay his diet for two months ; surplus to prisoner. § 2. If creditor or creditors live so far " as not to be notified as aforesaid," justice, in ten days after oath, to give certificate to be served. § 3. Prisoner convicted of false oath liable for perjury, and also " shall receive no benefit from said oath." § 4. Creditors to have fifty days after " their being so certi- fied " to discover estate or disprove oath. Then, if creditor does not pay or secure certain sum weekly, prisoner to be discharged. § 5. Judgment good nevertheless against lands, &c. § 6. Creditor may take out new execution for charges paid for prisoner discharged. Property exempt from execution. 1734-35, c. 3. An act in addition to an act entitled " An act for the ease of prisoners for debt " (1730, c. 4). Passed July 4; published July 6, 1734. Upon prisoner's escape, " the whole penalty " of the bond to be for the creditor. 3 Mass. 104. 1735-36, c. 7. An act for the ease of prisoners for debt. Passed and published July 3, 1735; expired Jan. 9, 1740-41. (Similar to 1730, c. 4.) CHRONOLOGICAL LIST. 325 § 3. " The whole penalty" of bond for creditor in case of escape. § 5. This act to commence on 7th October, and to continue for five years, etc. 1735-36, c. 17. An act in explanation of an act entitled " An act for the relief of poor prisoners for debt" (1732-33, c. 7). Passed Dec. 27, 1735; published Jan. 21, 1735-38; expired March 27, 1736. Prisoner's discharge under that chapter (1732- 33, c. 7) to be only from the execution of which notice was given to the creditor; and no benefit from oath with respect to any executions served after the oath; " but he shall be obliged to take the oath again." 1736-37, c. 13. An act for the relief of poor prisoners for debt. Passed Feb. 4, 1736-37; published Feb. 6, 1736-37; expired Feb. 6, 1741-42. § 1. When prisoner for debt or damages on execution com- plains of not enough to support himself or herself in prison, iailer, at prisoner's request, to apply to two justices, quorumunus; noti- fication; to be served on creditor or creditors, if they " live within their province," or representative, by reading or copy, at the place of "usual abode," or, if not of the province, to be left at usual abode, " if any such they have." Notifying of time and place for " caption of his or her oath " to be served at least forty days before the caption. Examination. Power to admin- ister oath. Form of oath. Upon oath and certificate, discharge unless creditor secures support. Imprisonment may continue as long as creditor pays expenses. Then discharge. § 2. Discharge to apply only to such execution or executions of which notice was given. § 3. After a discharge, no further benefits hereby upon com- mittal upon any new execution. § 4. Penalty for false oath; pains of perjury, and no benefit hereunder. § 5. If prisoner, at time of intended caption, " does not take oath, or is not admitted to take it, then to be remanded" and shall not be entitled to the benefit in and by this act provided." § 6. Judgment good against lands, &c. , notwithstanding discharge. § 7. New execution, with charges for expenses of prison. Certain goods exempt from execution. § 8. Debtor's remedy for false charge for support. 326 APPENDIX. § 9. Jailer's penalty for refusal or delay. § 10. This act not extended to executions for fines. § 11. This act to continue for one year. 1737-38, c. 17. An act for the rel[e]i[e]f of poor prisoners for debt. Passed Jan. 4, 1737-38; published Jan. 9, 1737.38; expired April 25, 1741. (Similar to 1738-37, c. 13.) § 11. This act to continue for three years. 1738-39, u. 10. An act in addition to and explanation of the act for rel[e]i[e]f of poor prisoners for debt. Passed June 29, 1738; published June 30, 1738. Preamble : " Whereas, different constructions have been made of the act for rel[e]i[e]f of poor prisoners for debt, by means whereof grievous and expensive lawsuits have arisen \^or'] [and] may yet farther arise, unless prevented by this court ; to which end, — " § 1. Whether act be expired or not, prisoner to be kept so long as the creditor, his attorney, or agent shall pay the subsist, ence; and payment or tender by executor or administrator of the attorney or agent of ci'editor sufficient. § 2. When creditors live out of the province, notice to be left with clerk of court out of which execution issued, and twice the time allowed. 1740-41, c. 22. An act for the ease of prisoners for debt. Passed and published April 10, 1741 ; expired April S6, 1746. (Similar to 1735-36, c. 7.) § 5. ThQ act to continue for " five years from the publication thereof, and from thence to the end of the next session of the general court, and no longer." 1741-42, c. 6. An act for the rel[e]i[e]f of poor prisoners for debt. Passed Aug. 8, 1741 ; published Aug. 10, 1741 ; expired Aug. 18, 1744. (Similar to 1737-38, c. 17, as amended by 1738-39, c. 10.) § 6. This act to continue for three years from publication, and to the end of the next session. 1744-45, c. 14. Act reviving and contiiming act of 1741-42, c. 6, relief of poor prisoners for debt. Passed Oct. 26, 1744; published Oct. 81, 1744; expired Jan. 30, 1752. § 1. Continue to last day of October, 1751, and the end of next session. 1744-45, c. 18. An act in addition to an act [e][i]ntitled " An act for the rel[ei][ie]f of poor prisoners for debt." Passed Dec. 26, 1744; published Jan. 9, 1744-45; expired Jan. 30, 1752. In consequence of the Act 1741-42, c. 12, concerning the CHEONOLOGICAI, LIST. 327 value of money, creditors, instead of giving security for eight shillings a week, shall give security for " two shillings and six- pence per week in lawful money, or bills of credit of this prov- ince equivalent thereto," for prisoner's support. § 2. This act to continue in force dui'ing continuance of the act to which it is in addition. 1748-49, c. 9. An act for the ease of prisoners for debt. Passed Nov. 11, 1748; published Nov. 28, 1748; expired Feb. 13, 1759. (Similar to 1740-41, c. 22.) § 5. This act to con- tinue for ten years from publication, and to the end of next session. 1751-52, c. 7. Act for reviving and continuing, &c., Act of 1741-42, c. 6, relief of poor prisoners for debt. Passed June 22, 1751; published June 25, 1751; expired July 1, 1754. The act revived to continue for three years from July 1. 1754-55, c. 5. Act reviving and continuing act of 1741-42, u. 6, relief of poor prisoners for debt. Passed June 16, 1754; published June 14 or 20, 1754; expired July 1, 1759. The act revived to continue for five years from July 1. 1756-57, c. 11. Act in addition to and for explanation of Act 1730, c. 1, imprisonment for taxes. Passed Oct. 14, 1756. 1757-58, c. 81. Act reviving and continuing Act 1748-49, c. 9, ease of prisoners for debt. Passed March 25, 1758; pub- lished March 27, 1758; expired April 1, 1763. The act revived to continue from March 31, 1758, to April 1, 1763. 1759-60, c. 12. An act for the relief of poor prisoners for debt. Passed Oct. 20, 1759; expired April 1, 1763. Similar to 1741-42, c. 6; but § 1 requires three shillings and sixpence per week for prisoner's support. To continue from October 20, 1759, to April 1, 1763. 1762-63, c. 18. An act for the relief of poor prisoners for debt. Passed Feb. 17, 1763; published Feb. 26, 1763; expired April 2, 1770. Similar to 1759-60, c. 12; but § 1 requires fifty days' notice to clerk of court in case of non-resident creditors, and requires four shillings and sixpence per week for prisoner's support. § 6. To continue from April 2, 1763, to April 2, 1770. 1762-63, c. 23. Act reviving and continuing, &c., Act 1748- 49, c. 9, ease of prisoners for debt. Passed Feb. 24, 1763; published Feb. 25 or 26, 1763; expired July 1, 1770. 328 APPENDIX. The GeneralLaws of Massachusetts, nS0-18S5 ; Vols. 1-4. Boston, 1823, 1832, and later. 1780, c. 47. An act prescribing the form of the writ Audita Querela, and of the proceedings thereupon. § 12. When complainant is in jail on execution, court may admit him to bail. (May 18, 1781.) 1783, c. 43. An act describing the duty and power of core- . ners. Approved March 12, 1784. 264, 304. 1783, c. 44. An act defining the powers and duties, and regu- lating the office of sheriffs. § 4. Sheriffs not to have their bodies arrested. Approved March 12, 1784. 1784, c. 10. An act regulating bail in civil actions. Ap- proved June 30, 1784. 125, 131, 300. 1784, c. 28. An act prescribing forms of writs in civil causes, and directing the mode of proceeding therein. § 10. Prisoner on mesne process to be kept thirty days after judgment against him, unless discharged by written order of creditor and on pay- ment of jailer's fees. Approved Oct. 30, 1784. 1781, c. 41, §§ 7-9. An act for providing and regelating of prisons. Approved Feb. 21, 1785. § 7. Apartments for prisoners for debt separate from felons and other criminals. § 8. Separate chamber. Rent. Liberty of yard. Bond to creditor or creditors. Condition of bond. Approval of sure- ties. "If the creditor or creditors shall refuse to take the bond, the same shall be left with the sheriff until the creditor or creditors shall demand the same." Whole penalty. No chancery. The Court of General Sessions of the Peace to fix boundaries of jail yards. 127, 128, 129, 285, 289, 290, 291, 302. 1784, c. 72. An act directing the process on Habeas Corpus. Approved March 16, 1785. 300, 319. 1785, c. 70. " An act for the choice and appointment of col- lectors of rates and taxes, and for ascertaining their power and duty." §§ 2, 5, 11, 18. Imprisonment for non-payment of taxes. Approved March 16, 1786. 1786, c. 58. An act establishing the right to, and the form of, the writ De Homine Replegiando, or writ for replevying a man. § 1. Among exceptions are those " held in execution upon CHRONOLOGICAL LIST. 329 judgment of debt ... or by distress for taxes." (Feb. 19, 1787.) 1787, c. 29. An act for the relief of poor prisoners who are committed by execution for debt. . Approved Nov. 19, 1787. § 1 requires thirty days' notice to creditor, and fifty to clerk of court in case of non-resident creditor. 230. § 2. Discharge after oath. § 5. Persons imprisoned on execution, who have been ad- mitted to the oath in act of 1763, but who are held by creditor's paying weekly allowance, are hereby " discharged from such executions," and to be discharged by jailer, " if confined for no other cause." 166, 174, 178, 267, 285, 309, 326, 333, 336. 1788, c. 16. " Act to prevent fraud and perjury.'' §3. Fraud for debtor in execution having "goods, effects, or credits to amount of ten pounds or more (that are unattach- able by the common and oi'dinary process of law) " to spend for his subsistence as much as amount of execution. Every per- son knowingly assisting liable to creditor for double amount spent. § 4. If debtor imprisoned on execution, creditor must give written discharge in seven days after trustee process is begun. Approved June 19, 1788. 323. 1789, c. 9. An act in addition to an act made and passed in the year of our Lord one thousand seven hundred and eighty- seven, entitled " An act for the relief of poor prisoners who are committed by execution for debt." Approved June 22, 1789. Persons committed on " execution issued upon a confession " to be entitled to benefit of act named in title. (See act of 1782, c. 21.) 1790, c. 42. An act for the relief of poor prisoners confined in jail for taxes. Approved March 10, 1791. Similar to the then existing act for relief of poor prisoners for debt. (See 1787,0.29.) But — § 5. Town to pay tax notwithstanding prisoner's liberation. § 6. Liability of collector or constable if imprisonment not within one year. 1793, c. 59. An act providing for the relief and support, employment and removal, of the poor, &c. Approved Feb. 26, 1794. 303, 306, 309. 1794, c. 65. An act to enable creditors, &c. (for trustee process). Approved Feb. 28, 1795. 330 APPENDIX. § 14. Judgment creditors acting under 1788, o. 16, to have benefit of this act. 1795, c. 41. An act regulating fees, &c. Repeal of act 1785, c. 70, § 18. Fees in cases of arrest for non-payment of taxes. Approved Feb. 13, 1796. 1795, c. 75. An act relating to actions of ejectment and dis- claimer, and for preventing strip and waste pending such actions. § 1. Upon arrest in " trespass and ejectment or other real action," defendant's own bond only required for his appearance. (Feb. 27, 1796.) 1798, c. 77. An act in addition to an act entitled " An act for giving remedies in equity." Approved March 1, 1799. 1803, c. 132. An act in addition to an act entitled " An act regulating bail in civU actions." Approved March 7, 1804. § 1. Scire facias. § 2. SuiTcnder of principal and discharge of bail. § 3. Form for mittimus upon surrender. Discharge of prin- cipal. § 4. Officer to attend to receive principal upon surrender. 1804, c. 67. An act in addition to an act entitled " An act for the relief of poor prisoners who are committed on execution for debt " (1787, c. 29). Approved March 1, 1805. Convicts incompetent as witnesses may be admitted to poor debtor's oath- 1805, c. 100. An act to exempt certain goods and chattels of debtors from attachment and execution. § 2. New form of poor debtor's oath. Approved March 13, 1806; took effect May 2, 1806. 333. 1808, c. 92. An act in addition to an act entitled " An act for the providing and regulating of prisons." Approved March 4, 1809. Confirming boundaries of gaol yards. Entry on pri- vate or public property within gaol-yard limits not an escape for those under bond. 143, 148 n., 296. 1809, c. 34. An act supplementary to the act for providing and reg^ating of prisons. Approved June 20, 1809. § 1. Liberty of yard not to authorize trespass. § 2. Action on bond within year from breach. 148, ji., 288, 304, n. 1809, c. 108, § 35. An act for regulating, &c., the militia. Approved March 6, 1810. 174. 1810, c. 114. An act for the relief of poor debtors. Ap- proved Feb. 28, 1811. No person after first of June next to be CHRONOLOGICAL LIST. 331 imprisoned on any execution of judgment on contract made after this act, unless the debt or damage in such execution shall exceed the sum of five dollars; and it shall be duty of clerk of court or justice of peace issuing execution not amounting to more, exclusive of costs, "so to vary the form of such execution, as that the same shall not run against the body of such debtor." 1810, c. 116. An act in addition to an act entitled " An act for providing and regulating of prisons." Approved Feb. 28, 1811. If escape through accident or misapprehension of limits of daytime or yard, whole penalty of bond not to be exacted. 127, 288. 1811, c. 69. An act to regulate the prison in the county of Suffolk. Approved June 25, 1811. Expired Mar. 1, 1812. 288. 1811, c. 85. An act to regulate prisons within this Commou- wealth. Approved June 27, 1811. § 1. Privileges of debtors on bond within limits. § 2. Service of notice on creditors may be by sheriff, deputy, or constable. § 3. Discharge of bond by surrender. § 4. This act to continue till 31 January, 1813. 288, 302. 1811, c. 102. An act defining the duties of sheriffs, coroners, and constables in certain cases. Approved Feb. 13, 1812. § 1. Bodies of prisoners who die in jail to be delivered to relations or friends, if they request it. Otherwise to be buried at expense of town of settlement, or, if non-resident, of Com- monwealth. § 2. Fine or imprisonment of officer taking dead body on mesne process or execution. 1811, c. 167. An act in addition to an act entitled " An act to regulate prisons within this Commonwealth" (1811, c. 85). Approved Feb. 29, 1812. § 1. Condition of bond for liberty of yard. 302. § 2. Breach of former bond explained as " passing over and beyond the exterior limits," and nothing else. § 3. Discharge by surrender. § 4. Bond after surrender. §5. This act and Act of 1811, c. 85, to continue until repealed. 127,142,288. 1815, c. 130, § 3. Imprisonment for non-payment of taxes. Approved Feb. 15, 1816. 332 APPENDIX. 1816, c. 55. An act in further addition to an act entitled " An act for the relief of poor prisoners who are committed by execution for debt." Approved Nov. 25, 1816. Took full eSect Aug. 1, 1817. Form of poor debtor's oath, " instead of the oath prescribed in any former act. " Form of justice's certifi- cate; provision for validity of discharge of persons who have taken oaths under the acts, 1787, c. 29, -and 1805, c. 100. 267, 334. 1816, c. 111. An act in addition to an act entitled " An act for the relief of poor debtors." Approved Dec. 14, 1816. Took effect Jan. 2, 1817. No imprisonment on execution after judg- ment on former judgment, unless the debt or damage of original judgment was more than five dollars ; and writ not to run against the body. 1817, 0. 69. An act in addition to an act, &c. Provides for warrants of distress for taxes. Approved Feb. 2, 1818. 1817, c. 87. An act for giving further remedies in equity. Approved Feb. 10, 1818. 269. 1817, c. 146. An act in addition to " An act regulating bail in civil actions." Approved Feb. 20, 1818. Bail may commit principal to prison. Liberty of yard. Discharge of bail. Costs if commitment after scire facias. Written notice by bail of commitment to plaintiff or attorney within fifteen days. 312, 338. 1817, c. 149, §§ 2, 3. An act for the better regulation of prisons. Approved Feb. 20, 1818.' , § 2. Debtors and criminals to be kept separate. § 4. Penalty for jailer's violation of this act. 1817, c. 186. An act concerning poor prisoners and other persons. Approved Feb. 24, 1818. Took effect June 1, 1818. § 1. Justices may adjourn examination; but not more than twice on same examination ; nor more than twenty- four hours at one time. Written examination, signed and sworn to before oath, "if required by creditor or his attorney." Written ex- amination may be certified by justice, and bought by creditor. Justice's fees. 35. § 2. Limitation of charges for pauper. § 3. Overseers of poor to set pauper prisoners to work. § 4. Pauper prisoner not to have intoxicating liquor with- out consent of overseers of poor. Penalty for jailer's offence in this. CHEOKOLOGICAL LIST. 333 § 5. Remedy of town or district against executors or admin- istrators. 12 Mass. 328. § 6. On death of pauper prisoner, overseers of poor may take possession of all his personal property. § 7. To take effect June 1, next. 1819, c. 24. An act in addition to an act entitled " An act for the providing and regulating of prisons." (See 1784, c. 41.) Approved June 18, 1819. Sheriff not to be liable for escape on bond taken by accident, etc., for less than double the sum, etc. 15 Mass. 276. 1819, c. 94. An act to relieve towns from the expenses of supporting persons imprisoned for debt. Approved Feb. 5, 1820. Took effect March 15, 1820. § 1. Personshavinglibertyof yardnottobeconsideredpaupers. § 2. Towns, districts, and Commonwealth may recover of creditor the charges paid for debtor's maintenance in close prison. 323. § 3. Jailer's charge for support in close confinement lim- ited to $1.25 per week. § 4. This act not to apply to debts contracted or cause ac- crued on or before March next. 1819, c. 180. An act in addition to an act entitled, "An act for the relief of poor prisoners who are committed by exe- cution for debt." Approved Feb. 21, 1820. The copy of notification of intended caption of poor debtor's oath (see 1787, c. 29) to creditor living out of State, and having no agent or attorney in it, may be left with " the clerk of the court, or the justice by whom the said execution was signed, thirty days previous to such intended caption." 1821, c. 22. An act in addition to an act to relieve towns from the expenses of persons imprisoned for debt. Approved June 16, 1821. § 1 . When prisoner for cause of action accruing after March 14, 1820, claims relief as pauper, creditor liable for support after twenty-four hours. $1.25 per week. 303. § 2. If no security given, discharge after twenty-four hours. 303, 308. § 3. Clerk or justice to certify upon execution time when action accrued. § 4. After discharge, debtor's property responsible for charges. 186, 306, 307, 312, 326. 334 APPENDIX. 1821, 0. 98. An act for limiting the term of imprisonment for fines and forfeitures incurred for breaches of the laws regulat- ing the militia of the Commonwealth. Approved Feb. 21, 1822. 1822, c. 86. An act in addition to the several acts now in force regulating the limits of prison yards and the discharge of poor debtors from prison. Approved Feb. 10, 1823. § 1. From and after May 15 next, jail boundary in Suffolk, coextensive with exterior boundary of Ward Five of Boston, " as the same is now defined." In other counties, to be fixed by Court of Sessions not more than fifty rods from jails "to which jail-yards may be assigned and established." § 2. Present limits to remain until then. § 3. Prisoners on execution not discharged within 120 days from this act if now in prison, or 90 days from commitment if hereafter committed, to be put into close confinement until discharged. § 4. Condition of bond hereafter to require debtor to surren- der himself for close confinement " at the expiration of 90 days from the day of his commitment." § 5, Former acts repealed. 142, 298. 1823, c. 67. An act giving remedy in equity on jail bonds'. Approved Feb. 4, 1824. Plaintiff to recover only what is equi- tably due. 1823, c. 140. An act in addition to an act entitled " An act for giving further remedies in equity." Approved Feb. 21, 1824. 269. 1823, 0. 148. An act for the better regulation of jails and the prisoners therein. § 1. Fuel. § 2. Kations, spirituous liquors, jailer's penalty. § 3. Jail police. § 4. Penalty for having spirituous liquors in prison with in- tent to convey to' prisoners. Approved Feb. 21, 1824. 1824, c. 124. An act in addition to an act entitled, " An act in addition to an act to relieve towns from the expenses of persons imprisoned. for debt." Approved Feb. 26, 1825. Per- sons confined on surrender by bail to have same privileges as if confined on mesne process or execution. Bail to support prin'- cipal till notice to creditor or attorney, and prison-keeper to require security. CHRONOLOGICAL LIST. 336 1825, c. 173. An act in addition to an act entitled, " An act for the punishment of fornication, and for the maintenance of bastard children." Approved March 4, 1826. Man impris- oned on bastardy process after 90 days may have benefit of Act 1787, c. 29, and acts in addition thereto, after notice to town clerk of child's settlement and to mother. Liable to action of debt after discharge. 1826, e. 9. An act in addition to an act passed February the twenty-fourth, A. D. one thousand eight hundred and eighteen, concerning poor prisoners and other persons. Approved Jime 20, 1826. § 1. When a person appears to take the poor debtor's oath, and only one iustioe is present, he may adjourn. § 2. The adjournment may be to any other place within the jail-yard limits. 1830, c. 131. An act to abolish imprisonment for debt in certain cases. Approved March 19, 1831; took effect July 2, 1831. § 1. From and after July 1 next, no arrest on mesne process or execution "for any debt less than ten pounds contracted sub- sequently to that day." § 2. After that day no female shall be arrested on mesne pro- cess or execution for any such debt, except when charged as trustee for more than ten dollars in judgment of Supreme Judi- cial Court or Court of Common Pleas. § 3. Clerk or justice to vary form of executions accordingly, so that they shall not run against the body. 1833, c. 134. An act to abolish the action of debt for an escape. Approved March 19, 1833. Officers not to be liable to action of debt for escape, voluntary or negligent, permitted or suffered after this act. 302. 1834, 0. 151. An act for the regulations of gaols and houses of correction. Treatment of poor debtors when imprisoned. Approved March 28, 1834. Took effect April 1, 1834. § 19. Prisoners for debt to be kept apart from felons, con- victs, &c, § 20. Rations. Penalty for jailer's neglect of statute. Spir rituous liquors. § 21. Penalty for having spirituous liquor with intent to convey to prisoner, &o. § 22. Former acts repealed. 336 APPENDIX. 1834, c. 167. An act to abolish imprisonment for debt. Approved March 31, 1834; took effect July 5, 1834. § 1. After July 4 next, no arrest on mesne process " for any debt or demand contracted subsequently to that day," with- out oath by a plaintiff or agent before a justice of the peace of claim; expectation to recover ten dollars; cause to believe defendant to avoid " intends to leave and remain beyond the jurisdiction of the court having cognizance of the suit, so that he cannot be arrested on an execution." § 2. Provision for notice to plaintiff by defendant of inten- tion to take poor debtor's oath at the trial of the action, and for proceedings there. § 3. Repeal of all acts inconsistent with this. 154. The Revised Statittes of Massachusetts, passed Nov. 4, 1835. Tooh effect May 1, 1836. Boston, 1836. R. S. c. 8. Of the collection of taxes. §§ 11-14. Imprison- ment for non-payment of taies. § 11. 253, 274. §§ 48, 49. Added by 1836, c. 4, § 1. Imprisonment for non- payment of taxes. Approved Feb. 15, 1836. R. S. c. 14. Of counties and county officers. § 13. 141. § 14. 147. § 73. Sheriffs not to have their bodies arrested. §79. 272. § 81. Penalty for taking body of a deceased person on mesne process or execution. R. S. c. 48. Of the State Lunatic Hospital, &c. § 6. 132. R. S. c. 49. Of the maintenance of bastard children. § 5. Man imprisoned in bastardy process may take the poor debtor's oath. R. S. c. 88. Of clerks, attorneys, and other officers of courts. § 29. 272. § 30. 272. R. S. c. 90. Of the commencement of actions and the ser- vice of the original writ. §§ 110-115. Of arrest, imprisonment, and discharge. ' § 111. 150, 154. R. S. c. 91. Of bail in civil actions. R. S. o. 94. Of witnesses and evidence. § 16. 233. §17. 233. CHEONOLOGICAL LIST. 337 § 18. 224, 233. § 19. 233. E. S. c. 97. Of judgment and execution. § 12. 145, 271, 318. §§ 44-72. Of arrest, imprisonment, and discharge. § 61. 193. § 62. 193. § 63. 137, 139, 193. § 68. 144. R. S. c. 98. Of the relief of poor prisoners committed on execution for debt. 12, 71, 75. § 1. 170, 171, 173, 186. § 2. 201, 203, 229. § 3. 229, 233, 234. §4. 7. § 9. 334. §10. 167,168. § 27. 57, 69. § 28. 47, 57, 69. § 29. 57, 69. § 30. 57, 61, 69. § 31. 47, 64, 69. § 31, cl. 4. 63. § 32. 69. § 38. 69. § 34. 69. § 3.5. 69. § 36. 69, 75. § 37. 69. § 38. 69. E. S. 0. 128. Of offences against public justice, § 5. After perjury, oath of poor debtor in his own behalf. E. S. c. 143. Of detention and imprisonment in the county jail, or the house of correction, and the government and regula- tion of those prisons. § 34. Spirituous liquor prohibited. § 35. Male and female prisoners not to be put or kept in same room. Prisoners for debt separate from felons, &c. 22 388 APPENDIX. Supplements to the Revised Statutes of Massachusetts. Vol. I. 1836-1853. 1837, c. 198. An act concerning persons imprisoned for debt, and relating to bail. Approved April 19, 1837. 138. 1838, 0. 163. An act for the relief of insolvent debtors, &c. Approved April 23, 1838; took efiect Aug. 2, 1838. §§ 7, 9. Debtor discharged in insolvency to be released from imprison- . ment. § 7. 135. 1842,0.56. An act jconcerning imprisonment for debt. Ap- proved March 3, 1842. § 1. 172, 221, 224, 233. 1844, c. 154. An act concerning poor debtors. Approved March 16, 1844. 223. § 10. 171, 229. 1844, c. 178. An act in further addition, &c., insolvent debt- ors, &c. § 3. Debts from defalcation not discharged by insol- vency. Approved March 16, 1844. 1848, c. 168. An act relating to the discharge of poor debtors committed on execution for debt (goods misspent or misused). Approved April 21, 1848. 1848, c. 286. An act concerning poor debtors. (New notice. Seven days.) Approved May 9, 1848. § 1. 208. 1848, c. 304. Insolvent Debtors. Approved May 10, 1848. § 10. Debts for necessaries not discharged by insolvency. 105. 1848, c. 320. An act for the removal of insane persons con- fined in jail for debt. Approved May 10, 1848. 1850, c. 199. An act concerning bail in civil actions. Ap- proved April 15, 1850. 1850, c. 212. An act to amend an act concerning poor debtors. (New notice after defect in form or service.) Approved April 17, 1850. 1851, c. 233. Practice act. 47. 1852, c. 211. An act respecting bail bonds in civil, actions. Approved May 13, 1852. 1852, c. 281. An act relating to the board of persons con- fined for debt. Approved May 20, 1862. 1852, c. 312. Practice act. 47. 1852, c. 322, § 7. Parties imprisoned for fines and costs for unlawful sales of spirituous liquors not entitled to take the poor CHRONOLOGICAL LIST. 339 debtor's oath until certain terms of imprisonment. Approved May 22, 1852; took effect in 60 days from and after its passage. 1853, c. 413. An act to change the jurisdiction of cases within the County of Suffolk, under the acts for the relief of poor debtors and for the approval of bail. Approved May 25, 1853. Supplements to the Revised Statutes of Massachusetts, Vol. II. 1854-59. 1854, u. 63. An act in relation to arrests in actions of tort (Oath required beforehand.) Approved March 8, 1854. 1854, c. 439. An act in addition to the acts for the relief of poor debtors. (Debtors' fees ; county to pay ; costs of scire facias.) Approved April 29, 1854. 1855, c. 215. An act concerning . . . intoxicating liquors. § 39. Repeal of Act 1852, c. 322, § 7, in regard to imprisonment for violation of liquor law. Approved April 20, 1855. 1855, 0. 249. An act concerning arrest in cases of tort. Ap- proved April 28, 1855. § 1. Mesne process in tort. Contents of affidavit. § 2. No arrest on mesne process for slander or libel. 1855, c. 276. An act in relation to persons committed to prison on warrants of distress. Approved May 2, 1855. 1855, c. 444. An act to abolish imprisonment for debt, and to punish fraudulent debtors. Approved May 21, 1855; took effect July 4, 1855. § 1. " Imprisonment for debt is hereby forever abolished in Massachusetts." Then follows a long chapter . 12. 80, 103, 120, 367. §1- 367. §3. 367. §4. 225, 255^ ,316, §7. 148. § 9- 94. §11. 151 § 16. 148. 1857, c. 141. An act to amend and consolidate the several acts concerning imprisonment for debt and the punishment of fraudulent debtors. Approved May 13, 1857. § 1. " Imprison- ment for debt, except in cases of fraud, is hereby forever abol- ished in Massachusetts.'' Then follows a long chapter. 5, 12, 37, 88, 92, 99, 102, 105, 111, 116, 121, 161, 162, 240, 248, 254, 370. 340 APPENDIX. §3. 367. § 4. 9, 10, 239. § 10. 74, 107. § 17. 151. § 21. 126. § 25. 311. §29. 369. 1857, c. 258. An act relating to imprisonment on execution. (Discharge under 1857, c. 141.) Approved May 30, 1857; took efiect June 12, 1857. 1859, c. 166. An act relating to the collection of money fraudulently withheld by attorneys at law. Approved April 4, 1859. 1859, c. 235. An act in addition to an act to protect mar- iners and ship owners from imposition. (Exemption from ar- rest, &c.) Approved April 6, 1859. The General Statutes of Massachusetts. Mnacted Dee. 28, 1859. Took effect June 1, 1860. G. S. c. 12. Of the collection of taxes. §§ 4, 13-15, 18. Im- prisonment for non-payment of taxes. Gr. S. c. 17. Of counties and certain county officers. § 60. Sheriffs not to be arrested. G. S. c. 52. Of shipping and pilotage. § 26. Seamen ex- empt from arrest for debt to landlord. G. S. c. 72. Of the maintenance of bastard children. 342. § 5. 342. § 11. Man imprisoned in bastardy process may take the poor debtor's oath, when. '175, 176. G. S. c. 115. Of matters common to the Supreme Judicial and Superior Courts. § 6. 48. G. S. c. 118. Of courts of insolvency §§ 77, 78. Debtor dis- charged in insolvency to be released from arrest or imprisonment. § 79. Debts from defalcation and for necessaries not dis- charged by insolvency proceedings. G. S. c. 120. Of justices of the peace. § 25. 73. §35. 14. G. S. c. 122. Special provisions respecting courts and the administration of justice. § 4. 27. G. S. c. 124. Of arrest, imprisonment, and discharge. 13, 40, 44, 45, 65, 117, 118, 122. CHEONOLOGICAL LIST. 341 § 1. 118, 132. i 2. 153. § 5. 16, 33, 39, 40, 41, 42, 43, 44, 45, 58, 66, 118, 155, 156, 157, 158, 159, 160, 163, 164, 165, 243, 261, 280, 282, 366, 367, 402. § 6. 283. § 8. 283, 371 a. § 9. 6, 8, 41, 169. § 10. 6, 11, 13, 18, 27, 30, 34, 78, 79, 82, 84, 87, 89, 91, 95, 96, 98, 100, 104, 106, 108, 109, 112, 114, 115, 119, 182, 212, 330, 331, 332, 339, 340, 341, 371. § 11. 115, 339, 424. § 12. 8, 39, 41, 78, 179, 200, 207. § 13. 179, 200, 220, 226, 227, 228, 231, 232, 235, 236, 237, 238, 239^ 241, 351. § 14. 98, 208, 209, 210, 211, 213, 214, 215, 216, 217. § 15. 13. § 16. 19, 21, 23, 25, 26, 27, 330. § 17. 81, 83, 85, 86, 93, 179, 180, 238, 321. § 18. 36, 398. § 19. 39, 41, 43, 44, 45, 77. § 21. 39, 40, 41, 43, 44, 45, 77, 333. § 22. 39, 40, 43, 44, 77, 323, 437. § 23. 58, 284. §25. 36,126. §26. 76. § 31. 44, 53, 54, 60, 61, 62, 66, 70, 77, 437. § 32. 54, 67, 68, 73. § 33. 54, 67, 76. § 34. 19, 52, 54. § 48. 23, 39, 281, 322, 328, 367, 371. G. S. c. 125. Of bail. § 18. 341. G. S. c. 129. Of pleading and practice. § 42. 117. G. S. c. 165. Of ofiences against chastity, morality, and de- cency. § 36. Penalty for taMng body of a deceased person on mesne process or execution. G. S. c. 178. Of jails and houses of correction. § 33. Separation of prisoners. § 42. Spirituous liquors. 342 APPENDIX. Supplement to the General Statutes of Massachusetts. Vol. I. 1860-72. 1860, c. 215. An act to amend chapter one hundred and twenty-four of the General Statutes. "Of arrest, imprison- ment, and discharge." (§ 1, "believes," &c. ; § 2, "section nine," &c). Approved June 11, 1»60. 6, 13, 161. 1861, c. 112. An act in relation to notice to creditors of per- sons arrested on mesne process and execution. (Service at abode, — twenty-four hours.) Approved March 30, 1861. 87, 224, 226, 228. 1862, c. 68. An act concerning probate courts and courts of insolvency. (§ 3. Probate courts shall be courts of record.) Approved March 18, 1862. 1862, c. 162. An act concerning the examination of judg- ment debtors (females). Approved AprU 28, 1862. 1. 1862, c. 169, § 2. An act concerning bail in criminal cases. (No affidavit for arrest on execution after scire facias in criminal cases.) Approved April 29, 1862. 1862, c. 183. Collection of taxes. § 9. Person imprisoned for non-payment of taxes may take poor debtor's oath. Ap- proved April 30, 1862. 1866, c. 193. An act in relation to the fees of magistrates in certain cases. Approved April 30, 1868. 371. 1869, c. 436. An act concerning bonds in civil cases (by other than party). Approved June 22, 1869. 1870, c. 77. An act concerning proceedings before certain magistrates. (Failure to attend. Continuance by another.) Approved March 15, 1870. 14, 93. 1870, c. 313, § 1. An act concerning certain legal proceed- ings in the name of the Commonwealth (on poor debtor bonds and recognizances). Approved June 3, 1870. 1870, c. 393. An act in relation to witnesses. 65. 1872, c. 200. An act to establish the First District Court of Eastern Worcester. § 1. 169. 1872, c. 281. An act to amend chapter one hundred and twenty-four of the General Statutes, in relation to the imprison- ment of poor debtors. (§ 1. Misspending or misuse ; charge of fraud. §§ 2, 3. Application for oath after sentence.) Approved April 29, 1872. 52, 67. CHRONOLOGICAL LIST. 343 Supplement to the General Statutes of Massachusetts. Vol. II 1873-77. 1873, 0. 343. An act in relation to the oath for the relief of poor debtors. (Intoxicating liquors not exempt.) Approved June 6, 1873. 1873, u. 352. An act concerning the arrest and discharge of poor debtors. (§ 1. Oaths, without surrender; sureties. § 2. Arrest on mesne process in tort. § 3. Discharge. § 4. Repeal.) Approved June 11, 1873. 58, 284. 1874, c. 238. An act relating to the collection of taxes. Approved May 18, 1874. 1875, c. 179. An act concerning suits in which the Com- monwealth is a party. (Judgments against males or females enforced under 1862, c. 162.) Approved May 3, 1875. 1877, c. 250. An act relating to the arrest and examina- tion of judgment debtors. (Notice to debtor before arrest on first charge, except when leaving State, &c.) Approved May 17, 1877. 16, 38, 40, 41, 42, 45, 356, 358, 367, 402, 414, 428, 438. § 1. 15, 40, 356, 358, 367. § 2. 38, 40, 41, 42, 414. § 3. 40, 41, 42, 45. § 4. 39, 40, 41, 43. § 5. 36, 398. Supplement to the General Statutes of Massachusetts. Vol. III. 1878-81. 1879, c. 245. . . . Insolvent Debtors. § 5. Debts from fraud or embezzlement not discharged by insolvency proceedings. Approved AprU 22, 1879. 1879, c. 283. An act concerning the examination of persons arrested on mesne process or execution, and of judgment debt- ors. § 1. Oral hearings. 414. § 2. Magistrates. Approved April 29, 1879. 1880, c. 132. An act to enlarge the powers of justices of the peace, and to abolish the office of justice of the peace and of the quorum. Approved March 23, 1880. 1881, c. 257, § 2. Certain debts not discharged by insolvency proceedings. (Goods attached on mesne process or taken on exe- cution.) Approved May 11, 1881. 1881, c. 263. An act concerning judgment debtors. 45. 344 APPENDIX. § 1. Excess of $20. 38, 40, 45. § 2. Arrest on alias execution. § 3. Application in county. 15, 367, 373. §4. Bail. § 5. Justices of peace to issue notices only. 358. Approved May 12, 1881. The PuUic Statutes of Massachusetts, Enacted Nov. 19, 1881. Tooh effect Feb. 1, 1882. P. S. c. 12. Of the collection of taxes. §§ 5, 14-16, 19. Im- prisonment for non-payment of taxes. 253, 274. P. S. c. 25. Of sheriffs. § 4. 382. § 11. Service of wi'its by sheriffs and deputies. § 12. Sheriffs not to be arrested. § 16. 382. § 18.. 384. P. S. c. 27. Of towns and town officers. §§ 113, 114. Bonds of constables. Service of writs. 382. § 118. 384. § 121. 383. P. S. c. 69. Of Shipping and Seamen, Harbors and Harbor Masters. § 9. Seamen exempt from arrest for debt to land- lord. P. S. c. 84. Of the support of paupers by cities and towns. §27. 309. P. S. c. 85. Of the maintenp' ' of bastard children. § 11. 342. § 20. Man imprisoned it°S ^ardy process may take the poor debtor's oath. 175,176. ■ , P. S. c. 151. Of the Supreme Judicial Court. Equity Juris- diction. § 5. 269. P. S. c. 153. Of matters common to the Supreme Judicial Court and Superior Court. § 6. 48. P. S. c. 155. Of justices of the peace and trial justices. § 28. 73. P. S. c. 156. Of probate courts. § 1. Probate courts to be courts of record. P. S. c. 157. Of courts of insolvency. §§ 82, 83. Debtor obtaining a discharge in insolvency to be released from arrest or imprisonment. § 84. Debts by fraud or embezzlement or for necessaries not discharged by insolvency proceedings. CHRONOLOGICAL LIST. 345 P. S. c. 159, § 50. Of clerks, attorneys, and other officers of judicial courts. 14. P. S. c. 160. Special provisions respecting courts and the administration of justice. § 4. 27. P. S. c. 161. Of the commencement of actions and the ser- vice of process. § 104. Bonds may be executed by other than party in certain cases. 389. P. S. c. 162. Of arrest, imprisonment, and discharge. (This whole chapter with references to the sections of this book is printed at the end of this list.) P. S. c. 163. Of bail. § 1. 385, 390, 399, 431. §2. 385. § 3. 386. § 4. 386. § 6. 125, 388. ' § 18. 341. § 28. 308. §29. 308. § 30. 308. §81. 308. P. S. c. 167. Of pleadings and practice. § 7. 379. §44. 117. § 82. 47. P. S. e. 169. Of witnesses and evidence. 398. § 18. 65. P. S. c. 171. Of judgment and execution. § 28. 145, 271. P. S. c. 207. Of offences against chastity, morality, &c. § 46. Penalty for taking body of a deceased person on mesne process or execution. P. S. c. 220. Of jails and houses of correction. § 38. Separation of prisoners. § 47. Spirituous liquors. 346 AEBEST, IMPBISONMENT, AND DISCHAKGB. IThe following chapter is printed here with all the references which appear with it in the Public Statutes, The titles of the sec- tions and most of the references are there in the margin: but here the titles are above the sections and the references are in notes. The cases there cited are without the names of parties ; but here the names are given for convenience in consulting the Table of Cases. Figures in full-faced type, referring to the sections of this book, are added here to references under sections of the chapter.] CHAPTER 162. OF ARREST, IMPRISONMENT, AND DISCHARGE. ARKESX ON MESNE. PROCESS AND EXECUTION. Section 1. Arrest on mesne process in actions of contract. 2. in actions of tort. 3. No woman to be arrested on mesne process, except for tort. No arrest in actions for slander. 4. Officer need not arrest without order. 5. No affidavit required to arrest on execution for costs only, nor upon scire facias, &c., on bail in criminal cases after de- mand, &c. 6. Creditor may cause demand to be made on female judgment debtor. 7. If the execution is not paid after such demand, she may be cited before court of insolvency. 8. may be brought in on capias if she fails to appear on citation. 9. may be examined before court, &c. 10. may be required to surrender property if she appears to have any, and be committed as for a contempt if she re- fuses. 11. shall be discharged if she becomes an Insolvent, &c. 12. may be required to transfer property fraudulently conveyed, &c., and creditor may recover same. 13. may be committed for contempt if she conveys property after service of citation. 14. Fees for proceedings, &c., in such cases. THE PKBSENT STATUTE. 347 15. Second demand, &c., may be made after three years, if judgment is not satisfied. 16. Judgments in favor of the commonwealth enforced in like man- ner, or before the court where judgment is rendered. 17. Arrest on execution. 18. Same subject. Magistrate to issue notice, unless, &c. Notice how served. What magistrates may hold examination. 19. Form of notice to debtor. 20. Examination and hearing. 21. Property not exempt and exceeding twenty dollars to be pro- duced by debtor, and transferred. 22. Debtor may redeem estate so transferred. -23. Creditor may refuse to accept transfer. Acceptance not to destroy his right to collect balance. 24. If arrest is not authorized, creditor not to apply again for three years. 25. Magistrate may authorize arrest without notice. 26. No arrest after sunset, unless, &c. DISCHARGE OF PEKSONS ARRESTED ON MESNE PROCESS AND EXECUTION. 27. Defendant or debtor, when arrested, to be allowed time to pro- cure bail, &c. ; to be carried before magistrate. 28. If defendant or debtor desires to take oath, but does not wish time fixed, &c., magistrate may take recognizance, &c. 29. A person surrendered, &c., may recognize anew. 30. Debtor at large on bail, &c., may take oath without surrender by surety. 31. When defendant or debtor desires to take oath, notice to be given. 32. Service of notice. 33. New notice not to be given until after seven days, unless, &c. 34. Defendant or debtor to be examined. 35. Examination may be adjourned, &c. 36. Pending examination, recognizance may be taken, &c. No recog- nizance after oath has been refused. 37. Defendant may be discharged if he was not intending to leave the state. Proceedings. 38. Examination concerning ability to pay, &c. 39. If magistrate is satisfied, &c., he may administer oath. 40. Certificate of magistrate, and effect of discharge. Death of cred- itor not to affect proceedings. 41. Debtor on bail, &c., may be discharged. 42. Debtor not entitled to oath, after scire facias, until payment of costs. 348 AEREST, IMPBISONMENT, AND DISCHAEGE. IMPRISONMENT. 43. Debtor, when arrested on mesne process in an action of tort, &c., may be committed, &c. 44. on execution, &c., may be committed, &c. 45. support of, in jail. 46. creditor may discharge. 47. goods and estate of, to remain liable. 48. liable for all sums paid for his support. PUNISHMENT OF FEAnDDLENT DEBTORS. 49. When fraud is charged, debtor to plead, &c. 60. Either party may appeal. 61. Proceedings on appeal. 52. Upon default or conviction, debtor may be denied oath, &o. Application may be renewed, when. DISCHARGE OP PERSONS IMPRISONED ON WARRANTS OP DISTRESS IN PAVOR OP THE COMMONWEALTH. 63. Proceedings when committed on warrant of distress in favor of commonwealth. 64. Same subject. ' 55. Same subject. DISCHARGE OR REMOVAL OP INSANE DEBTORS. 56. Insane debtors, how released from confinement on mesne process or execution. 57. Legal rights of creditors not affected. SPECIAL PROVISIONS FOR PERSONS IN PRISON OR ON BAIL IN CIVIL ACTIONS WHEN JUDGMENT IS RECOVERED AGAINST THEM. 58. Discharge of persons in jail when final judgment is rendered against them. 59. Proceedings when execution issues. 60. Same subject. 61. Bond may be given by person surrendered by bail after final judgment. 62. Debtor may be committed within thirty days after judgment. SURRENDER OP PRINCIPAL ON RECOGNIZANCE. 63. Proceedings when principal is surrendered on recognizance. THE PRESENT STATUTE. 349 KEMEDT ON KECOGNIZANCES AND BONDS, AND FOK ESCAPES. 64. Remedy on recognizances and bonds. 65. Actions in favor of commonwealth on poor debtor bonds, &c., where to be brought. 66. for an escape. NON-ATTENDANCE OF MAGISTRATES. 07. Any other magistrate may continue proceedings, if the one before whom process is returnable, &c., fails to attend. 68. Fees of magistrate. 69. ' of jailer. ABEEST OSr MBSNE PEOCESS AND EXECtJTiaN. [Arrest on mesne process in actions of contract.} Section 1. No person shall be arrested on mesne pro- cess in an action of contract, unless the plaintiif or some person in his behalf makes affidavit and proves to the satisfaction of some justice of a court of record or police, district, or municipal court, or of a master in chiancery, commissioner of insolvency, or, except in the county of Suffolk, a trial justice, or justice of the peace, — First, That he has a good cause of action, and reasona- ble expectation of recovering a sum amounting to twenty dollars, exclusive of all costs which have accrued in any former action ; Second, That he believes and has reason to believe that the defendant has property, not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintiff's claim; and. Third, That he believes and has reason to believe that the defendant intends to leave the state, so that execution if obtained cannot be served upon him ; Or (instead of the second and third) that the defendant is an attorney at law, that the debt sought to be recovered is for money collected by the defendant for the plaintiff. 350 AEEEST, IMPRISONMENT, AND DISCHARGE, and that the defendant unreasonably neglects to pay the same to the plaintiff. And such affidavit and the certificate of the magistrate that he is satisfied the same is tnie shall be annexed to the writ.^ [In actions of tort.] Sect. 2. No person shall be arrested on mesne pro- cess in an action of tort unless the plaintiff or some person in his behalf makes oath to the satisfaction of some magis- trate named in the preceding section that he believes and has reason to believe that he has a good cause of action against the defendant, that he has reasonable expectation of recovering a sum equal, at least, to one-third the dam- ages claimed in the writ, and that he believes and has reason to believe that the defendant intends to leave the state, so that if execution be obtained it cannot be served upon him ; and such affidavit, with a certificate of the magistrate that he is satisfied the same is true, shall be annexed to the writ.'' [No woman to be arrested on mesne process except for tort. No arrest in actions for slander.] Sect. 3. No woman shall be arrested on mesne process except for tort. No person shall be arrested on mesne process in a civil action for slander or libel.' 1 G. S. 124, § 1; 1862, 68, § 3. See c. 25, § 12; c. 69, § 9; c. 157, § 84; c. 207, § 46. Cody v. Adams, 7 Gray, 59; Stone V. Carter, 13 Gray, 575; May i'. Shumway, 16 Gray, 86; Hitch- cock V. Baker, 2 Allen, 431; Abbott v. Tucker, 4 Allen, 72; Hulett V. Pixley, 97 Mass. 29; Mowry v. Chase, 100 Mass. 79; Underwood v. Robinson, 106 Mass. 296; Underwood v. Brown, 106 Mass. 298; Thompson's Case, 122 Mass. 428; Henshaw u. Cotton, 127 Mass. 60. 314, 3€3, 372, 374, 376, 398, 401, 428. 2 1873, 352, § 2. See c. 25, § 12; c. 207, § 46. Cody v. Adams, 7 Gray, 59; "Wood v. Melius, 8 Allen, 434; Hulett v. Pixley, 97 Mass. 29. 314, 385, 400. 8 G. S. 124, §§ 3, 7. Foss v. Hildreth, 10 Allen, 76. 285. THE PEESENT STATUTE. 351 [Officer need not arrest without order.] Sect. 4. The officer who serves an original writ shall not be liable for not having arrested the defendant, un- less he has been expressly required by the plaintiff or his attorney to make such arrest.^ [No affidavit required to arrest on execution for costs only, nor upon scire facias, etc., on bail in crimiiml cases after demand, etc.] Sect. 5. No affidavit shall be required to authorize arrest upon an execution issued for costs only ; nor upon an execution issued upon scire facias or other suit upon a recognizance against bail or sureties in criminal cases, when the debtor neglects upon demand to deliver to the officer having such precept property not exempt from levy sufficient to satisfy such execution. A debtor so arrested shall be committed on the execution, unless he requii-es the officer to take him before some magistrate named in section twenty-seven.^ [Credito}' may cause demand to be made on a female judgment debtor.'] Sect. 6. The judgment creditor in an execution is- sued against a woman, unmarried or married, upon a judgment for the sum of twenty dollars and upwards, ex- clusive of all costs which make a part of said judgment, whether the same have accrued in the last action or in a former action on the same original cause of action, and while so much as that amount remains uncollected, may cause payment of the same to be demanded of her by an officer qualified to execute the same ; and if upon such demand she fails to pay the same or to expose sufficient goods or estate to be taken by such officer to satisfy the same, the officer shall, if requested by the judgment cred- itor, make a return of his doings upon such execution, 1 G S. 124, § 4. 382. 2 G. S. 124, § 6; 1862, 169, § 2. Hildreth v. Brigham, 12 Al- len, 71. 283, 285 note, 367, 424. 352 AEEEST, IMPEISONMBNT, AND DISCHAKGB. and shall be entitled to receive his fees for travel, and, in addition thereto, one dollar, which fees shall be repaid by the judgment debtor as a part of the costs of the execution.^ [Tf the execution is not paid after such demand, she may be cited before court of insolvency.^ Sect. 7. After such demand the judgment creditor or any person in his behalf may apply to the court of insol- vency of the county within which the judgment was ob- tained, or in which the debtor resides, by petition setting forth the fact of such judgment and demand, with a copy of the execution and of the return of the officer thereon, and alleging that he believes that she has property not exempted from attachment, which she refugjss to apply in payment of said execution, or to expose so that the same may be taken thereon, and praying that a citation may issue requiring her to appear at a time and place therein to be fixed, and submit to an examination touching her estate, which application shall be verified by the oath of the applicant ; and thereupon the register of said court shall issue such citation, giving to her at least one day's time for every twenty miles' travel, and one day for any distance less than twenty miles. Such citation may be served by any ofBcer competent to serve the execution.^ [May be brought in on capias if she fails to appear on citation.] Sect. 8. If the debtor fails to appear at the time and place fixed in the citation, on proof of service by the return of the ofiioer, the judge may issue a capias to bring her before him, which may be served by any oflicer com- petent to serve the citation ; the fees for service of the citation shall be fifty cents for the copy, and the same travel as for the service of writs.' 1 1862, 162, § 1. 5 Allen, "209" (probably error for 206, Wixon Y . LapJiam) . 1, note after 285, 424, 2 1862, 162, § 2. 1, 285, 424, ' 1862, 162, § 2. 1, 285, 424. THE PEBSENT STATUTE. 353 [May be examined before court, etc.\ Sbct. 9. The judgment debtor, when so brought be- fore said judge, shall be sworn by him or by the register of the court to make true, full, and perfect answers touch- ing her estate and the disposal of the same ; and she shall thereupon be examined by the judgment creditor upon written interrogatories, either in the presence of the judge or otherwise as he shall direct; and after such ex- amination she may add such other facts as she may deem necessary, and the judgment creditor may re-examine her in regard thereto ; and the examination so made shall be signed by her and placed on file in the court of insolvency, with the other papers in said case. Either of the parties may introduce evidence in relation to the subject of such examination.^ [May be required to surrender property if she appears to have any, and be committed as for a contempt if she fails so to do.] Sect. 10. If it appears upon said examination and proof that the judgment debtor has property of any kind of the value of twenty dollars not exempt from attach- ment, or from being taken on execution, or which cannot be got at to be taken on execution, judgment to that effect shall be entered by the court, and she shall be re- quired to produce the same, or so much thereof as may be needed to satisfy such execution, with the costs of the proceedings upon such citation ; or if the said property is not within the county in which the proceedings are had, or not capable of being taken on execution, she shall be required to execute and deliver to the judgment creditor, or to some person on his behalf, a transfer, assignment, or conveyance of the same, or of so much thereof as may be sufficient to satisfy said execution and said costs, or to secure the payment of the same ; and if, upon being or- 1 1862, 162, § 4. 1, 285. 424. 23 354 ABEEST, IMPKISONMENT, AND DISCHAKGE. dered so to do, she neglects or refuses to obey such order, she shall be committed by said court as for a contempt, and shall stand committed until she obeys such order or is otherwise discharged according to law.^ [Female judgment debtor shall be discharged if she becomes irisoli'ent, etc.] Sect. 11. If such judgment debtor during such com- mitment becomes an insolvent debtor under the laws of this commonwealth, or a bankrupt under the laws of the United States, or if it appears that she has been divested of her property or estate during such commitment other- wise than by her own act, she shall thereupon be dis- charged.'' [May be required to transfer property fraudulently conveyed, etc., and creditor may recover the same.] Sect. 12. If, after the commencement of the suit upon which the judgment was obtained, the judgment debtor has made a voluntary or fraudulent conveyance, transfer, or gift of any property or estate, she may be required to transfer the same to the judgment creditor, who may thereupon demand such property and recover the same from the party who received the same, or from any per- son who may have taken the same without consideration, or with notice of the fraud or want of consideration of the original transfer, conveyance, or gift.' [May be committed far contempt if she conveys property after service of citation, etc.] Sect. 13. If, after the service of the citation upon the judgment debtor, and during the pendency of the pro- ceedings thereon, she has made a conveyance, assignment, or transfer of any property, or a payment of money with intent to prevent the same from being transferred or paid to the judgment creditor, or applied by force of the said 1 1862, 162, § 5. 1, 285, 424. 2 1862, 162, § 6. 1, 285, 424. " 1862, 162, § 7. 1, 285, 424. THE PRESENT STATUTE. 355 proceedings to the satisfaction of the said judgment, such transfer, assignment, conveyance, or payment shall be deemed made in contempt of the court, and she shall be liable, in the discretion of the court, to be committed as for a contempt, and to stand committed until discharged by due process of law ; but payment of debts for neces- saries and debts due on judgments shall not be deemed within the prohibition of this section.^ [Fees fir proceedings, etc.} Sect. 14. The petitioner shall pay to the court of insolvency the following fees : for the citation, two dol- lars ; for each day's hearing, and for each day's examina- tion when conducted in the presence of the judge, five dollars; which fees shall be repaid by the judgment debtor if she is adjudged to have property, under the pro- visions of section ten ; all such fees shall be accounted for by the register of insolvency in the same manner as fees received by him in cases of insolvency.^ [Second demand, examination, etc., may be made after three years, if judgment is not satisfied.] Sect. 15. At any time after the expiration of three years from the termination of any such proceedings, and while the judgment remains in force, the judgment cred- itor may cause a new demand to be made ; and if the execution in such case is not thereupon satisfied, he may cause the like proceedings to be had as if no previous de- mand and proceedings had been made or had.' [Judgments in fivor of the commonwealth may be enforced in like manner before court oj" insolvency or court where judgment was rendered.] Sect. 16. Judgments in favor of the commonwealth, whether against male or female defendants, may, when the attorney-general or the district-attorney for the dis- 1 1862, 162, § 8. 1, 285, 424. 2 1862, 162, § 9. 1, 285, 424. 8 1862, 162, § 10. 1, 285, 424, 356 AEEEST, IMPRISONMENT, AND DISCHARGE. trict in which such judgments are recovered so orders in writing upon the execution, be enforced according to the provisions of sections six to fifteen inclusive ; the applica- tion referred to in section seven may in such cases be made either to the court of insolvency, or to the court in which the judgment Mfsls rendered, which court shall in such cases have the same jurisdiction as is given in said sections to the court of insolvency, with the right to desig- nate a master in chancery or commissioner of insolvency, to take and report the examination of the judgment debtor and the testimony, at the rate of compensation allowed in Uke cases to the judge of insolvency.^ [Arrest on execution.] Sect. 17. Except as provided in sections five to six- teen inclusive, and except in actions of tort, no person shall be arrested on an execution in a civil action, unless the judgment creditor or some person in his behalf, after execution is issued amounting to twenty dollars exclusive of all costs which make part of said judgment, whether the same have accrued in the last action or in any former action on the same original cause of action, and while so much as that amount remains uncollected, makes affidavit, and proves to the satisfaction of some magistrate named in section one, that he believes and has good reason to believe, — First, That the debtor has property not exempt from being taken on execution, which he does not intend to apply to the payment of the plaintifi^s claim ; or, Second, That, since the debt was contracted or the cause of action accrued, the debtor has fraudulently con- veyed, concealed, or otherwise disposed of some part of his estate, with a design to secure the same to his own use or defraud his creditors ; or. Third, That, since the debt Was contracted or the cause 1 1875, 179. 1, 285, 424. THE PEESENT STATUTE. 357 of action accrued, the debtor has hazarded and paid money or other property to the value of one hundred dol- lars or more in some kind of gaming prohibited by the laws of this commonwealth ; or, Fourth, That since the debt was contracted the debtor has wilfully expended and misused his goods or estate, or some part thereof, for the purpose of enabling himself to swear that he has not any estate to the amount of twenty dollars, except such as is exempt from being taken on execution; or, Fifth, If the action was founded on contract, that the debtor contracted the debt with an intention not to pay the same ; or, Sixth, That the debtor is an attorney at law; that the debt upon which the judgment on which the execution issued was recovered was for money collected by the debtor for the creditor, and that said attorney unreasona- bly neglects to pay the same. And such affidavit, and the certificate of the magistrate that he is satisfied there is reasonable cause to believe the . charges therein contained, or some one of them, are true, shall be annexed to the execution. If the judgment debtor lives or has his usual place of business in any county in this state, the application for a certificate author- izing his arrest shall be made in that coimty; otherwise it may be made in any county.^ 1 G. S. 124, § 5; 1860, 215, § 1; 1881, 263, § 3. See c. 25, § 12; c. 157, § 84; c. 207, § 46. Dooley v. Cotton, 3 Gray, 496; Stone V. Carter, 13 Gray, 575; McGregor v. Crane, 98 Mass. 530; Knight v. Sampson, 99 Mass. 36; Francis v. Howard, 115 Mass. 236; Abbott v. Tucker, 4 Allen, 72; Blake's Case, 106 Mass. 501; Frost's Case, 127 Mass. 550; Dow d. Sanborn, 3 Allen, 181 ; Horton v. Weiner, 124 Mass. 92 ; Webber v. Da- vis, 5 Allen, 393; Manuel v. Bates, 1,04 Mass. 354. 4, 15, 16, 33, 38, 39, 40, 41, 42, 44, 45, 46, 47, 58, 59, 63, 66, 77 note, 154, 155, 156, 157, 164, 165, '261 case in note, 284, 315, 358, 359, 361, 363, 366, 367, 373, 379, 397, 401, 402, 407, 408, 418, 422, 423, 424, 428, 432, 433. 358 [Magistrate to whom application is made to issue notice, unless, etc. Notice, how served. What magistrates may hold examinational Sect. 18. A magistrate to whom application is made for a certificate authorizing arrest on execution upon the first charge specified in the preceding section shall, unless it appears that the judgment debtor intends to leave the state, before granting the same, issue notice to the debtor to appear at a time and place therein fixed, and submit to an examination touching his estate. Such notice may be served by an ofiioer authorized to serve said execution, by delivering an attested copy of the notice to the debtor, or leaving the same at his last and usual place of abode, allowing not less than three days before the time fixed for the examination, and at the rate of one day additional for every twenty-four miles' travel. The examination, or the time fixed therefor, may be postponed or continued from time to time at the discretion of the magistrate. The magistrates before whom such examinations may be held shall be those named in section twenty-seven. Jus- tices, of the peace shall have no authority to act under this and the seven following sections, except to issue notices as therein provided returnable before some magis- trate authorized to act thereon.^ [Form of notice tp debtor.] Sect. 19. The notice to the debtor required by the preceding section shall be signed by the magistrate, desig- nating his official capacity, and shall be substantially in the following form : viz., — To A. B. C. D., the judgment creditor named in a certain execution against you, dated , issued from [here designate the court], having applied for a certificate authorizing your arrest, you are 1 1877, 250, § 1; 1879,, 283, §' 2; 1881, 263, § 5. Frost's Case, 127 Mass. 550. 4, 16, 24, 28, 39, 40, 41, 44, 45, 77 note, 217 note, 221, 224, 225, 241 note, 330, 343, 356, 358, 359, 360, 362, 363, 365, 366, 367, 401, 402, 403, 404, 405, 406, 407, 408, 415, 418, 422, 428. 438. THE PEESENT STATUTE. 359' hereby notified to appear before [here designate the name or names of some magistrate or magistrates named in section twenty-seven] at [here designate the place of examination or hearing] on the day of at o'clock in the noon for examination in accordance with the provisions of chap- ter one hundred and sixty-two of the Public Statutes. E. F. (JSfagislrate.y [Examination and hearing.^ Sect. 20. If the judgment debtor appears before the magistrate at the time and place fixed, he shall be exam- ined on oath touching his estate and effects and the dis- posal thereof. Such, examination may be in the presence of the magistrate or otherwise as he shall direct, and when completed, if in writing, shall be signed and sworn to by the debtor, and shall be preserved by the magistrate. The magistrate shall also hear any legal and pertinent evi- dence which either party may offer. The examination and hearing shall be oral, unless the .parties, or one of them, requests that the same may be wholly or in part in writing. If the time for the return of the execution expires while the examination is pending, or if the debtor fails to appear at the examination, or, if appearing, he fails to obey all lawful orders and requirements of the magistrate, the arrest may be authorized, either upon the original execution, or upon an alias or other successive execution in like manner as upon the original execution.'' [Property not exempt, and exceeding twenty dollars to be produced by debtor.] Sect. 21. If it appears that the debtor has estate or property of any kind above the amount of twenty dollars, 1 1877, 250, § 6 ; 1879, 283, § 2. Frost's Case, 127 Mass. 550. 28, 40, 41, 44, 45, 203, 343, 356, 358, 360, 361, 364, 365, 401, 403, 404, 422, 428, 438. 2 1877, 250, § 2; 1879, 283, § 1 ; 1881, 263, § 2. Frost's Case, 127 Mass. 550. 28, 38, 40, 41, 42, 43, 44, 45, 330, 343, 356, 362, 363, 365, 366, 367, 397, 409, 410, 413, 414, 415, 416, 417, 418, 422, 428, 431, 438. 360 AEEEST, IMPEISONMBNT, AND DISCHAEGE. not exempt from being taken on execution, he shall, if possible, produce the excess and allow it to be taken on the execution, or otherwise applied to the payment of the judgment debt and of the costs of the proceedings. If said estate or property cannot be taken on the execution, the debtor shall be required to execute and deliver to the judgment creditor, or to some person in his behalf, a transfer, assignment, or conveyance of the same, in such form as the magistrate may direct.'' [Debtor may redeem estate so transferred or assigned.^ Sect. 22. The debtor may redeem real estate so trans- ferred, within one year, and personal property within sixtj days, from the date of such transfer, assignment, or con- veyance, upon payment of said debt and costs, and of the necessary expense actually paid by the creditor for the care or custody of such property. If such estate or prop- erty is not so redeemed, the same shall be sold forthwith at public auction, unless in the transfer or assignment thereof it was provided otherwise, and the proceeds, after deducting the expenses of such sale, shall be applied to the payment of said debt and costs, and the excess, if any, remaining after such payments, shall be paid to the debtor ; or the creditor may take said property at a valuation to be fixed by the debtor in the transfer, assignment, or con- veyance of the same, and apply such amount in payment as aforesaid.^ [ Creditor may refuse to accept transfer. Acceptance not to destroy his right to levy balance.} Sect. 23. The creditor may refuse to accept any trans- fer or assignment whatever, and his acceptance of the 1 1877, 250, §3; 1881, 263, § 1. Frost's Case, 127 Mass. 550. 1, 38, 38 note, 40, 41, 42, 43, 44, 45, 343, 356, 365, 411, 417, 438. 2 1877, 250, § 3. Frost's Case, 127 Mass. 550. 40, 41, 44, 45, 356, 365, 438. THE PRESENT STATUTE. 361 same shall not destroy or impair his right to have his exe- cution satisfied in whole or in part by a levy on other property in the manner provided by law. In case the execution, at any time after such transfer or assignment is made, and before the sale of the property conveyed thereby, is satisfied in full by levy or otherwise, the cred- itor shall forthwith re-convey said property to the debtor.^ [If wrest is not avthorizedj creditor not to again apply for three years.] Sect. 24. If the debtor appears as directed by the magistrate, and obeys all lawful orders and requirements made by him, the magistrate shall not grant a certificate authorizing an arrest, and the judgment creditor shall not, for the period of three years thereafter, make ajjplication for the arrest' or examination of such debtor upon the same charge and cause of action.^ [Magistrate may autjiorize arrest without notice.] Sect. 25. If in addition to the first charge specified in section seventeen the judgment creditor, or some one in his behalf, makes affidavit and proves to the satisfaction of the magistrate that there is good reason to believe that the debtor intends to leave the state, the magistrate may, without notice to the debtor, authorize his arrest.' [No arrest after sunset, unless, etc.'\ Sect. 26. No arrest shall be made after sunset, unless specially authorized by the magistrate making the certifi- cate, upon satisfactory cause shown.* 1 1877, 250, § 3^ Frost's Case, 127 Mass. 550. 40, 41, 44, 45, 356, 365, 438. 2 1877, 250, § 4. Frost's Case, 127 Mass. 550. 28, 39, 40, 41, 43, 44, 45, 77, 330, 343, 356, 365, 366, 406, 417, 422, 428, 438. 8 1877, 250, § 5. Frost's Case, 127 Mass. 550. 4, 40, 45, 154, 315, 356, 397, 398, 420, 421, 423, 424, 426, 438. 4 G. S. 124, § 8. Manuel v. Bates, 104 Mass. 354. 283, 362, 371 ci, 378, 379. 362 AKKBST, IMPEISONMENT, AND DISCHARGE. DISCHAjRGE OF PEBSONS AEEESTED ON MESNE PEOCESS AND EXECUTION. [Defendant or debtor, when arrested, to be allowed time to procure ball, etc.] Sect. 27. When arrested on mesne process the defend- ant shall be allowed a reasonable time to procure bail, and when arrested on such process, or on an execution, he shall be allowed reasonable time to procure sureties for his recognizance hereinafter mentioned. When arrested on mesne process, if he does not give bail, and when ar- rested on execution in any case, he shall be taken before some judge of a court of record, or of a police, district, or municipal court, or a master in chancery, commission er of in- solvency, or, except in the county of Suffolk, a trial justice.-' [Magistrate may take recognizance, etc.] Sect. 28. When taken before the magistrate, if the de- fendant or debtor desires to take an oath as hereinafter mentioned, but does not desire a time fixed for his exam- ination, the magistrate may take his recognizance with surety or sureties in a sum not less than double the amount of the execution, or of the ad damnum in the writ if he is arrested on mesne process, that within thirty days from the day of his arrest he will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as herein pro- vided, and appear at the time fixed for his examination, and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide 1 G. S. 124, § 9; 1862, 68, § 3; 1873, 352, § 3. Hart v. Adams, 7 Gray, 581; Wass i\ Bartlett, 10 Gray, 490; Doane v. Baker, 6 Allen, 260; Dike v. Story, 7 Allen, 349; Van Kuran v. May, 7 Allen, 466 ; Clement v. Sargent, 100 Mass. 300 ; Nash v. Coffey, 105 Mass. 341 ; Chase v. Chase, 105 Mass. 385. 6, 10, 31, 41, 318, 362, 383, 385, 391, 392, 420. THE PRESENT STATUTE. 363 the final order of the magistrate thereon ; but if he is ar- rested on mesne process and the writ is returnable within thirty days, the number of days within which he shall deliver himself up shall be limited by the magistrate so as not to extend beyond the return day of the writ.^ [A person surrendered, etc., may recognize anew.] Sect. 29. A person taken on execution, and recogniz- ing, if surrendered by his surety, may recognize anew for such appearance at the time, place, and upon the condi- tions expressed in the first recognizance.^ [Debtor at large on bail or recognizance may take oath without surrender by surety.] Sect. 30. A person arrested on mesne process who has recognized or given bail may, without a surrender by his 1 G. S. 124, § 10. Jacot v. Wyatt, 10 Gray, 236; Stone v. Kussell, 11 Gray, 226 ; Underwood v. Clements, 16 Gray, 169 Smith V. Randall, 1 Allen, 456; Carroll v. Rogers, 4 Allen, 70 Dike V. Story, 7 Allen, 349; Van Kuran v. May, 7 Allen, 466 Russell V. Goodrich, 8 Allen, 150; Snelling v. Coburn, 10 Allen, 344; McGregor v. Crane, 98 Mass. 530; Sweeney v. Gillooly, 103 Mass. 549; Cassidy v. Hart, 104 Mass. 221; Nash v. Coffey, 105 Mass. 341; Way «. O'SuUivan, 106 Mass. 118; Turner v. Bart- lett, 109 Mass. 503; Millett v. Lemon, 113 Mass. 355; Morrill u. Norton, 116 Mass. 487; Hooper v. Cox, 117 Mass. 1; Fuller v. Meehan, 118 Mass. 135; Simpson v. Trivett, 120 Mass. 147; Coleman v. Ha;wkes, 120 Mass. 594; Mount Washington Glass Works V. Allen, 121 Mass. 283; Cook v. Thayer, 121 Mass. 415; Hills V. Jones, 122 Mass. 412 ; National Bank v. Williams, 122 Mass. 534; National Security Bank u. Hunnewell, 124 Mass. 260; Lynde v. Richardson, 124 Mass. 557; O'Connell v. Hovey, 126 Mass. 310; Browne v. Hale, 127 Mass. 158. S, 18, 28, 30, 31, 37, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 91, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 106, 108, 114, 115, 116, 117 note, 120, 121, 123 note, 137, 181, 313, 321, 331, 332, 340, 393, 394, 395, 399, 406, 424, 425, 435. 2 G. S. 124, § 11. Pacific Ins. Co. v. Canterbury, 104 Mass. 433. 424. 364 AEEEST, IMPBISONMBNT, AND DISCHAEGB. surety or sureties, take the oath that he does not intend to leave the State, or the oath for the relief of poor debt- ors ; and the taking of either of said oaths by such person shall be a discharge of his surety or sureties. [Notice when debtor desires to take oath.] Sect. 31. If the defendant or debtor, when taken be- fore the magistrate or at any time when entitled thereto, desires to take an oath as hereinafter provided, and to have a time fixed therefor, the magistrate shall appoint a time and place for his examination, and shall issue a no- tice thereof to the plaintiff or creditor, signed by him and designatiilg his official capacity, substantially in the fol- lowing form : — To A B : C D , arrested on mesne process (or execution) ia your favor, desires to take the oath for the re- lief of poor debtors, (or, the oath that he does not intend to leave the State,) at (naming the day and hour and place). E F (Magistrate'). Notice may be given that the defendant arrested on mesne process as aforesaid desires to take both of said oaths, and the form of notice may be varied accordingly.^ [Notice, service of.] Sect. 32. The notice shall be served by an oflScer qual- ified to serve civil process, by giving to the plaintiff or creditor, his agent or attorney, an attested copy thereof, or by leaving such copy at the last and usual place of abode of the plaintiff or creditor, his agent or attorney. 1 G. S. 124, § 12. FoUansbee v. Bird, 8 Cush. 289; Shed v. Tileston, 8 Gray, 244; Skinner v. Frost, 6 Allen, 285; Snelling v. Coburn, 10 Allen, .344 ; Paul v. Holden, 14 Allen, 29 ; Nash v. Cof- fey, 105 Mass. 341 ; Way v. O'SuUivan, 106 Mass. 118; Salmon o. Nation, 109 Mass. 216; Danforth v. Knowlton, 111 Mass. 76; Dana v. Carr, 124 Mass. 397, 399 ; Dwyer v. Winters, 126 Mass. 186; Henshaw v. Cotton, 127 Mass. 60. 28, 39, 41, 78, 179, 180, 200, 203, 207, 395, 396, 399, 422, 426. THE pees?;nt statute. 365 The time of service shall be not less than one hour, and, if service is made at the last and usual place of abode, not less than one day before the time appointed for the exam- ination, and there shall be allowed in addition at the rate of not less than one day for every twenty-four miles' travel. When there is more than one person plaintiff or creditor, or more than one agent or attorney, service on one shall be sufficient. When the plaintiff or creditor is dead or not a resident in the county where the arrest is made, the notice shall be served upon the agent or attor- ney if he lives in the county or has his usual place of business therein ; but if no such agent or attorney is found within the county, the notice may be served on the officer who made the arrest. The person who made the writ may always be regarded as the attorney of the plaintiff or creditor, when an arrest is made on the writ or on an execution issued thereon.^ {New notice not to be given until after seven days, cfc] Sect. 33. When a defendant or debtor has given no- tice of his desire to take the oath for the relief of poor debtors, no new notice of the same shall be given until the expiration of seven days from the service of the for- mer notice, unless the former notice was insuiHcient in form or service.^ 1 G. S. 124, § 13; 1861, 112. Niles v. Hancock, 3 Met. 568; Park v. Johnston, 7 Cush. 265; May «. Foote, 7 Allen, 354; Salmon u. Nation, 109 Mass. 216; Cunningham v. Mahan, 112 Mass. 58; McGurkine v. Bates, 113 Mass. 507; Henshaw «. Sa- vil, 114 Mass. 74; Francis v. Howard, 115 Mass. 236; Harwood V. Wiley, 115 Mass. 358; Homer v. Sinnott, 119 Mass. 191; Taylor v. Clarke, 121 Mass. 319; Central Nat. Bank v. O'Con- nor, 123 Mass. 52; Newcomb v. Willcutt, 124 Mass. 178; Cutler V. Boyd, 124 Mass. 181. 28, 179, 180, 182, 200, 212, 221, 224, 225, 226, 227, 228, 231, 232, 234, 236, 238, 240, 241, 351, 396, 397, 399, 426. 2 G. S. 124, § 14. Skinner o. Frost, 6 AUen, 285; Saflord 366 AEEEST, IMPRISONMENT, AND DISCHAEGB. [Debtor to be examined.] Sect. 34. When the notice mentioned in section thirty- one has been duly served, the magistrate who issued it, or any other magistrate named in section twenty-seven, shall attend at the time and place therein specified, and examine the defendant or debtor as herein provided.* [Examination may be adjourned, etc.] Sect. 35. The magistrate may adjourn the case from time to time, and shall have the same powers with respect to all other incidents thereto as trial justices or other courts have in civil actions ; and witnesses duly summoned shall attend as required in civil cases. ^ [Pending examination, recognizance may be taken, e1. P. 22, § 15, Constitution; p. 521, § 1, Executions. GEORGIA. The Oode of the State of Georgia, 1882. P. 1291, § 5013, Constitution. IDAHO. Revised Laws Idaho, 1875. Pp. 93-98, Of the provisional remedies in civil actions — Arrests and bail; p. 132, § 227, par. 3, The execution; pp. 142, 143, §§ 259, 260, Proceedings supplementary to the execution. General Laws of Idaho, Wth Session, 1880-81. Pp. 132, 133, §§ 572-577, Provisional remedies in probate and justices' courts. ILLINOIS. Revised Statutes lUinois, Hurd, 1880. P. 55, § 12, Constitution; pp. 169-172, Bail in civil cases; pp. 601-606, Insolvent debtors; pp. 641, 647, §§ 5, 61-65, Judgments, decrees, and executions; pp. 657, 658, §§ 22-29, Justices and constables; pp. 665-667, §§ 83, 84, 86, 93, 94, Execution. 25 386 AEEBST, IMPKISONMENT, AND DISCHARGE. Laws of Illinois, BradweU, 1881. Pp. 89, 91, §§ 22, 23, 85, 93, Justices, and constables. INDIANA. Revised Statutes, 1881. P. 15, § 67, Constitution; pp. 154-158, §§ 791-818, Execution; pp. 166-168, Arrest and bail; pp. 224, 225, Ne exeat. IOWA. Revised Code Iowa, Miller, 1880. Vol. 2, p. 1175, § 19, Constitution; Vol. 2, pp. 770-772, Proceedings auxiliary to execution. KANSAS. Compiled Laws of Kansas, 1879. P. 51, § 98, Constitution of the State of Kansas; pp. 620- 623, Arrest and bail; pp. 666-669, Proceedings in aid of execution; pp. 669, 670, Executions against the person; pp. 704r-706, Arrest and bail. KENTUCKY. General Statutes Kentucky, BuUitt and Feland, 1881. P. 122, § 19, Constitution; p. 163, § 10, Bastardy; pp. 403, 404, Escapes; pp. 418, 419, Executions; pp. 554-556, In- solvent debtors. BuUitt' s Codes Kentucky, 1876. Pp. 34-39, Arrest and bail; pp. 52-54, Attachments in certain actions; pp. 138, 139, Duties of Sheriffs; p. 141, § 689, General provisions; pp. 197, 198, Forms concerning arrest and bail. LOUISIANA. Voorhies' Revised Statutes of Louisiana, 1876. pp. 32-35, Arrest in civil cases; pp. 473, 475, Insolvent Laws; p. 103, Bonds. STATUTES OF THE SEVERAL STATES. 387 MAINE. Revised Statutes of Maine, 1871. P. 492, § 5, Eights of married women; p. 604, § 17, Sheriffs; p. 616, §§ 2, 4, Forms and requisites of writs; p. 631, Days on which no arrest can be made; pp. 670-672, Bail in civil actions; pp. 792-804, Relief of poor debtors; p. 912, § 23, The State prison. Acts and Resolves of State of Maine, 1873. P. 77, c. 122, Poor debtors' disclosures. Acts and Resolves State of Maine, 1874. Pp 136, 137, c. 198, Poor debtors. Acts and Resolves State of Maine, 1875. Pp. 6, 7, c. 4, Relief of poor debtors ; pp. 20, 21, c. 22, Poor debtors. Laws of Maine, 1876 P. 99, c. 139, Support of poor debtor in jail by creditor. Acts atid Resolves State of Maine, 1878. Pp. 54, 55, c. 59, Poor debtors; pp. 63-66, c. 67, Enforce- ment of jadgment; p. 101, c. 79, Arrests for taxes. Acts and Resolves of the State of Maine, 1879. P. Ill, c. 91, Enforcement of judgments. See Vol. 1 of Commissioners' Report for New Revision, which contains chapter on Poor Debtor Law. MARYLAND. Revised Code of Maryland, 1878. F. 70, § 38, Constitution. MICHIGAN. Howell's Annotated Statutes of Michigan, 1882. Vol. 1, p. 55, § 33, Constitution. 388 AEKEST, IMPRISONMENT, AND DISCHABGE. Compiled Laws Michigan, 1871. Vol. 1', pp. 648, 649, Bastards; pp. 1571, 1572, 1601, Jus- tices' courts; pp. 1665-1667, Commencement of suits; pp. 1669-1674, Bail in civil actions; pp. 1739, 1740, Judgments and executions; pp. 1745, 1746, Judgments on executions; pp. 1759, 1760, Provisions concerning actions; pp. 1983- 1988, The punishment of fraudulent debtors; pp. 1993, 1994, 1997, Fraudulent and insolvent debtors; pp. 2013- 2015, Relief of poor debtors from imprisonment; pp. 2016- 2021, Jails and jail limits; pp. 2022-2027, Jails and jail limits. Laws of Michigan, 1873. Vol. 1, pp. 15, 16, Punishment of fraudulent debtors. Public Acts of Michigan, 1875. P. 187, Imprisonment of parties in civil suits. Laws of Michigan, 1873. Vol. 1, pp. 28, 29, 180, Imprisonment of females. MINNESOTA. Statutes of Minnesota, 1878. P. 18, § 12, Constitution; pp. 762, 763, Proceedings supplementary to the execution. MISSISSIPPI. Revised Code of Mississippi, 1880. P. 20, § 11, Constitution. MISSOURI. Revised Statutes of Missouri, 1879. Vol. 1, p. Ivi., § 16, Constitution; p. 694, § 4041, Writs and process. MONTANA. Laws of Montana, Revised Statutes, 1879. Pp. 62-66, Arrest and bail. STATUTES OF THE SEVEEAL STATES. 389 NEBRASKA. Compiled Statutes of Nebraska, Guy A. Brown, 1881. P. 16, § 20,' Constitution; pp. 549-552, Arrest and bail; pp. 601, 603, Executions; pp. 63i, 635, Justices of the peace; arrest. NEVADA. Compiled Laws of Nevada, 1873. Vol. 1, p. cix., § 14, Constitution; pp. 302-306, Arrest and bail. NEW HAMPSHIRE. General Laws of New Hampshire, 1 878. P. 152, Collection of taxes; p. 503, § 19, Sheriffs; p. 513, Writs, and their indorsement; pp. 522-524, Arrests and bail; pp. 553, 554, Imprisonment and prison bonds; pp. 554^-556, Relief of poor debtors; pp. 556, 557, Liability of bail. NEW JERSEY. Revision of New Jersey, 1877. Vol. 2, pp. 855-864, Process; arrest; bail; p. 1229, Vice and immorality. Laws of New Jersey, 1879. P. 237, " An act to prohibit imprisonment for default in payment of taxes on real estate." NEW MEXICO. General Laws of New Mexico, 1880. Pp. 132, 133, Service of process, — capias; pp. 155, 159, Executions. NEW YORK. Revised Statutes of New York, 7th Edition, 1882. Vol. 4, p. 5, § 15, Code of civil procedure; imprisonment for non-payment of costs; pp. 22-24, Prisoners in civil cases; pp. 24-26, Jails; pp. 26-28, Temporary jails; pp. 28-30, 390 AEKEST, IMPEISONMENT,, AND DISCHAEGB. Jail liberties; escapes; pp. 30-32, Bond for jail liberties; pp. 32, 33, Coroner's duties; pp. 34, 35, New sheriff; pp; 108-118, Arrest and bail; p. 141, § 719, 720, Provisional remedies; p. 257, § 1281, No arrest in controversy sub- mitted; p. 277, § 1372, Requisites of execution; pp. 300, 301, Execution against the person; pp. 341, 342, § 1714, Replevin where order of arrest has been granted; pp. 383, 386, 387, 397, §§ 1921, 1934, 1935, 1940, 1990, Sundi-y provisions; pp. 402,403, § 2016, Habeas corpus, &c. ; pp. 436-438, §§2185,2188-2197, Insolvent to be released from imprisonment; pp. 439-442, Discharge of civil prisoner; pp. 487-493, Proceedings supplementary to an execution against property; pp. 595-597, 606, 607-609, §§ 2894-2904, 2952, 2959, 2963, 2964, Justices' courts; arrest; pp. 620-622, §§ 3032-3037, 3040, 3042, Justices' courts; executions; pp. 650, 652, 654-656, §§ 3163, 3167, 3177-3187, Arrest in marine cause; pp. 660, 663, 664, §§ 3210, 3211, 3217-3219, 3221, 3222, New York District Courts, &c. ; p. 696, § 3347, Application of this act. NORTH CAROLINA. Battle's Revised, 1873. P. 33, §16, Constitution; pp. 176-180, Arrest and bail ; pp. 204, 205, The execution; pp. 208-211, Proceedings supplementary to the execution; pp. 482-488, Insolvent debtor; p. 698, Prisoners. Laws of North Oarolina, 1874-1875. P. 7, Amending c. 60, § 28, of Battle's Revisal. Laws of North Carolina, 1881. P. 134, Amending c. 60, § 31, Battle's Revisal; oath of insolvent debtors. OHIO. Revised Statutes of Ohio, 1 880. Vol. 2, pp. 1329, 1330, Execution against the person; pp. 1330, 1331, Privilege from arrest, &c. ; pp. 1334-1337, In aid of execution; pp. 1838-1342, Arrest and bail; pp. 1522-1527, Insolvent debtors. STATUTES OF THE SEVERAL STATES. 391 OREGON. General Laws of Oregon, 1843-1872. P. 77, § 19, Constitution; pp. 127-132, Arrest and bail; pp. 173, 174, Proceedings supplemental to execution; p. 192, § 391, Arrest in equity suit; p. 464, Justices' Courts; general provisions; pp. 627, 628, Relief of persons com- mitted on civil process ; p. 775, Arrest by telegraph. Laws of Oregon, 1878. P. 100, Amending §§ 15.5 and 273 of Code. PENNSYLVASriA. Brighdy's Purdon's Digest, 1872. Vol. 1, p. 32, § 16, Constitution; pp. 45-53, Of the com- mencement of actions by arrest; pp. 635, 636, Execution; pp. 739, 740, Gaol; pp. 775, 785, Insolvents; p. 864, Justices of the peace. Laws of Pennsylvania, 1879. Pp. 129, 130, Fraudulent debtors. RHODE ISLAND. Public Statutes of Rhode Island, 1882. P. 21, § 11, Constitution; pp. 560-562, Writs, the forms thereof, &c. ; pp. 566, 567, Service of writs; p. 575, Ex- emptions from arrest; pp. 609-611, Executions; p. 613, § 2, p. 617, § 29, Service of executions; pp. 618, 619, Pro- ceedings by and against bail; pp. 619-622, Imprisonment of debtors, &c. ; pp. 623-627, Relief of poor debtors; pp. 628-630, Poor tort debtors. SOUTH CAROLINA. General Statutes of South Carolina, 1882. P. xxvii., § 20, Constitution; pp. 203, 205, 206, Sheriffs; pp. 678-682, Of proceedings for the relief of persona ar- rested in civil actions. Code of Civil Procedure. Pp. 59-64, Arrest and bail; pp. 88, 89, Executions. 392 AEEEST, IMEEISONMBNT, AND DISCHAKGE. TENNESSEE. Statutes of Tennessee, 1871. Vol. 1, p. 79, § 18, Constitution. TEXAS. Revised Statutes of Texas, 1879. P. 2, § 18, Constitution. UTAH. Compiled Laws of Utah, 1876. Pp. 419-424, Arrest and bail; p. 460, The execution; pp. 472-474, Proceedings supplementary to the execution; pp. 540-542, Arrest in justices' courts; p. 677, Of county jails. VERMONT. Revised Laws of Vermont, 1880. Pp. 315-317, Arrest of the body, and remedies by and against bail; pp. 318-321, Arrest in actions founded on contract; pp. 321-327, Imprisonment for debt and in ac- tions of tort, and discharge therefrom; p. 333, Levy of execution. VIRGINIA. Code of Virginia, 1873. Pp. 1016-1018, Bail required of defendants leaving the State; pp. 1178-1183, Executions; p. 1084, note; Process requiring a defendant to appear. WASHINGTON. Washington Code, 1881. Pp. 53-57, Of aiTests and bail: 88, 89, Of executions; pp. 100-102, Proceedings supplementary to execution ; pp. 139, 140, Ne exeat. STATUTES OF THE SEVEKAL STATES. 393 WEST VIRGINIA. Revised Statutes of West Virginia, Kelly, 1878. Vol. 1, pp. 235-237, Arrest of defendant; vol. 2, pp. 585, 586, Executions, debtor about to leave the State; pp. 696, 697, Justices, arrest of defendant before judgment; pp. 709, 710, Justices, arrest of defendant after judgment; pp. 1043, lOM, Sherifes and jailers. Acts of West Virginia, 1881. Pp. 56, 57, Justices; arrest of defendant before trial; pp. 83-85, Imprisonment of fraudulent debtor; pp. 261, 262, Sheriffs, jailers, &c. WISCONSIN. Revised Statutes of Wisconsin, 1878. P. 18, § 16, Constitution; pp. 730-734, Of arrest and bail; p. 749, Writ of ne exeat; pp. 778-780, Executions; pp. 792, 793, Of remedies supplementai-y to execution; pp. 903, 909, Justices; commencement of actions, &c. ; pp. 1031-1035, Of the relief of persons confined in jail on civil process. WYOMING. The Compiled Laws of Wyoming, 1876. Pp. 50-54, Arrest and bail: p. 97, Proceedings in aid of execution; pp. 99, 100, Executions against the person. UNITED STATES. Revised Statutes of the United States, 2d Edition, 1878. P. 68, §§ 410, 411, Postmaster- General may discharge certain poor debtors; pp. 185, 186, §§ 990-992, Imprison- ment for debt; p. 217, § 1237, Men enlisted in army exempt from arrest for debt; p. 273, § 1610, Marines exempt from arrest for debt; pp. 688, §§ 3471, 3472, Discharge of poor debtors by Secretary of Treasury and by the President. LIST OF BOOKS AND ARTICLES On Arrest, Imprisonment, and Discharge in Civil Actions. Mtes on the Public Statutes of Massachusetts, h/ Uriel K and George G. Orocker, Boston, 1882. Massachusetts Practice, Buswell and Walcott, Boston, 1875. Gives briefly law of arrest on mesne process and execu- tion in Massachusetts. Howe's Practice (Mass.), Boston, 1834. Chap. 12, service of a capias. Colby's Practice {Mass.), Boston, 1848. Gives some of the law as to arrest in Massachusetts. Mason's Practice {New England), Boston, 1880. Gives brief statement of law of arrest in all the New England States. New England Sheriff, by Hartshorn, 2ded., Worcester, 1855. Chiefly a digest of law of Massachusetts as to sheriffs, arrest, &c. Backus' Sheriff, New Fork, 1812. Gives briefly law as to arrest in New York, Massachu- setts, Connecticut, New Hampshire, Vermont, and Khode , Island, besides something of English law. Hammond's Justice, West Brookfield, 1841. Gives something as to law of arrest in Massachusetts. Davi^ Massachusetts Justice, Worcester, 1847. Gives considerable as to law of arrest in Massachusetts. Dane's Abridgment, American Law, 1824, Vol. 5, Chap. 136, 144. ,Gives some early law as to executions, arrest, and escape in Massachusetts. LIST OF BOOKS AND AETICLBS. 395 Morrison's Justice and Sheriff, 1872. Gives law of New Hampshire as to arrest. Spaulding's Practice, Portland, 1881. Gives law in Maine as to arrest. McAdam on the Stilwell Act, New York, 1880. Gives the New York act to abolish imprisonment for debt and to punish fraudulent debtors, and also the practice, forms, and cases. Sishop on Insolvent Debtors, New York, 1878. Bishop's In- solvent Debtors under New Code, New York, 1882. These two books give present New York law as to arrest, &c. Herman on Executions, New York, 1875, Cfhap. 21. Of the capias ad satisfaciendum or execution against the person of the debtor. Crocker on Sheriffs, 2d ed.. New York, 1871. Gives something of law as to arrest in New York. jiJlen on Sheriffs, New York, 1845. Gives something as to law of arrest in New York. HoffmarCs Provisional Remedies, New York, 1862, Chap, 1. Contains a brief history of the law of arrest'in England. White's Practice, Albany, 1872, Vol. 1. Gives something as to New York law of arrest, Kenfs Commentaries, 12th ed., 1873, Vol. 1, p. 422; Vol. 2, pp. 397-400. Gives brief statement of law as to imprisonment for debt in Europe and United States. Holcombe on Debtor and Creditor, New York, 1848. Gives very briefly the law as to arrest for debt in each of the United States and in Canada. Freeman on Executions, San Francisco, 1876, Chap. 31. Executions against the person. Gwynne on Sheriffs, Cincinnati, 1849. Gives briefly law of Ohio, Indiana, and Kentucky on arrest, &c. Law of Arrests in Civil and Criminal Oases, London, 1742. Said in preface to be first book on the subject. 396 AEEEST, IMPEISONMBNT, AND DISCHAKGB. Peter sdorff, Treatise on the Law of Bail, Am. ed., Philadel- phia, 1835. Gives brief history of English law. Gilbert on Executions, London, 1763. Gives some early English law as to arrest. Bingham on Judgments, London, 1815. ~ Gives something as to execution and arrest. Tidd's Practice, Am. ed., Philadelphia, 1856. Gives early English law as to arrest. SeUon's Practice, Am. ed.. New York, 1813. Introduction contains brief history of English law as to arrest in civil cases. Balton's Sheriff", London, 1682. Gives early English law as to arrest. Office of Sheriff", by John Impey, London, 1786. Gives some English law as to arrest. Sheriff Law, by Mr. Serjeant Atkinson, London, 1854. Gives some English law as to arrest. Watson's Office Duty of Sheriff, 2d ed., London, 1848. Gives some law as to arrest, for debt as it was under 7 & 8 Vict. c. 96. Ghurchill's Law of Sheriff , 2d ed., London, 1882, p. 398. Gives briefly English law on imprisonment for debt as it exists at present under 32 & 33 Vict. c. 62 ; and 41 & 42 Vict. c. 54. Reeves's English Law, by Finlason, London, 1869, Chap. 16. Gives early English law on arrest. Crabb's English Law, London, 1822, Chap. 18, p. 268. Arrest for debt under very early English law. Be Lolme on the Constitution, by Stephens, London, 1838, Vol. 2, Chap. 10. An account of civil process in England as compared with same under Roman law. Paterson's Law of the Liberty of the Subject, London, 1877, Vol. 2., Chap. 7, and 8. Good account of imprisonment for debt in early times in England. LIST OF BOOKS AISTD ARTICLES. 397 Blackstone's Commentaries, Booh 3, p. 280. Eai-ly history of process in England. Bell's Commentaries on Law of Scotland, 1th ed, 1370. Vol. 1, Book 1. Good review of law of debtor and creditor in Scotland. 77ie Common Law, by 0. W. Holmes, Jr., Boston, 1881, f. 14. Origin of the idea that the person of the debtor may be a satisfaction of his debt. Hunter's Roman Law, London, 1876, pf. 24, 873. Good account of execution against the person for debt under Eoman law. Le Droit Civil, Explique par M. Troplong, Paris, 1847. Introduction treats of arrest in civil actions in France and other countries. Bssai sur V Abolition de la Contrainte par Corps, by Har- douin, Paris, 1874. On law of arrest in Fi-ance. London Law Review, May, 1846, Vol. 4, p. 142. Article on law of debtor and creditor. Same, November, 1846, Vol. b, p. 77. Article in favor of restoring arrest on mesne process. Westminster Review, January, 1828, Vol. 9, jo. 41. On imprisonment for debt in England. Same, July, 1833, Vol. 19, p. 198. Article on law of debtor and creditor in England, show- ing hardships of debtor. Same, April, 1834, Vol. 20, p. 354. On abolition of imprisonment for debt in England. Same, September, 1845, Vol. 44, p. 449. On imprisonment for debt in England. JJ'raser's Magazine, Jwne, 1834, Vol. 9, p. 645. Article on imprisonment for debt in England. Same, Fehrtiary, 1838, Vol. 17, p. 171. Article on imprisonment for debt in England. Same, May, 1838, Vol. 17, p. 545. Article on effect of abolishing all laws relating, to debtor and creditor. 398 AEKBST, IMPEISONMENT, AND DISCHAE6B. British and Foreign Review, 1837, Vol. 5, p. 64. Article on arrest for debt in England. Same, 1844, Vol. l&,pp. 119, 658. Articles on law of debtor and creditor in England. Banker^ Magazine (London), October, 1845, Vol. 4, p. 7. Article on imprisonment for debt. Broadway Magazine, London, 1869, Vol. 2, N. S. pp. 228, 310. Two articles entitled "Behind the Bars " and " Imprison- ment for Debt." Temple Bar, November, 1864, Vol. 12, pp. 249, 341. Two articles entitled " Behind the Bars " and " Poverty a Crime." Fortnightly Review, London, 1877, Vol. 27, p. 307. Article entitled "Have we abolished Imprisonment for Debt? " Tai£s Edinburgh Magazine, 1856, Vol. 23, p. 242. Article on imprisonment for debt. Journal of Jurisprudence, Edinburgh, 1881, Vol. 25, p. 127, Article on debtors' act of 1880. Same, 1882, Vol. 26, p. 240. Article on the civil imprisonment (Scotland) bill of 1882, 45 & 46 Vict. c. 42. North American Review, July, 1820, Vol. \\,p. 197. Remarks on law of debtor and creditor in United States. Same, April, 1831, Vol. 32, p. 490. Article on imprisonment for debt. The Nation, (N. Ti), November, 16, 1871, Vol. 13, p. 319. Article on imprisonment for debt in New York. Bankers' Magazine (N. T.), 1846-47, Vol. l,p. 713. Article on imprisonment for debt. Niles' Register, 1821-24, Vol. 20, p. 58. Article on imprisonment for debt on process issuing from United States courts. Same, Vol. 21, p. 123. Article on abolishing imprisonment for debt in Ten- LIST OF BOOKS AND AKTICLES. 399 Same, Vol. 23, p. 251. Remarks in Kentucky Senate on abolishing imprisonment for debt. Same, Vol. 23, p. 321. Remarks on the need of imprisonment for debt. Same, Vol. 26, p. 153. Text of bill to abolish imprisonment for debt, passed by United States Senate. The Granite Monthh/, Concord {N. K), Felruary, 1882, Vol. 5,^.150. Article on early practice in New Hampshire. Hunfs Merchant 's Magazine, New York, 1841, Vol. 4, pp. 72, 538. Two articles on imprisonment for debt. American Almanac:, 1848, p. 181. Gives briefly the laws of the several States concerning imprisonment for debt. De Bow's Review, New Orleans, 1847, Vol. 4, p. 106. Short article on insolvent debtors in Louisiana. Hunt's Merchants' Magazine, New York. Contains a series of articles on laws of some of the States relative to debtor and creditor, as follows : Alabama Connecticut Blinois . . Iowa . . • Louisiana Maine . . Massachusetts Michigan Mississippi . Missoun . . New Hampshire New Jersey . . New York . . Vol. 6, p. 155 ; Vol. 15, p. 580 ; Vol. 16, p. 57. Vol. 3, p. 132. Vol. 5, p. 446. Vol. 7, p. 443. Vol. 15, pp. 70, 471 ; Vol. 16, pp. 53, 165, 281. Vol. 2, p. 321. Vol. 4, p. 549. Vol. 17, p. 274. Vol. 16, p. 379; Vol. 17, p. 179. Vol. 2, p. 412; Vol. 5, p. 252; Vol. 21, p. 61. Vol. 3, p. 63. Vol. 2, p. 481 ; Vol. 4, p. 253. Vol. 4, p. 74. 400 ARREST, IMPRISONMENT, AND DISCHARGE. Ohio . . . Pennsylvania Tennessee . Vermont . . Wisconsin . England . . Vol. 16, p. 469. Vol. 4, p. 448. Vol. 17, p. 377; Vol. 19, p. 386. Vol. 3, p. 333. Vol. 6, p. 256. Vol. 6, p. 49. INDEX. THE PIGUEBS IN FULL-FACED TYPE KEPEE TO THE SECTIONS OP THIS BOOK. A. ADJOURNMENT, magistrate may adjourn case though creditor does not appear, 23. See 405. by magistrate against creditor's objection, 25, 26. may be made on Fast Day, 27. cannot be made after refusal of oath, 30. when hearing comes on Sunday, 96. an hour allowed for appearance at an adjourned hearing, 329. form for continuance when magistrate is absent, 396. rules as to, 438. AFFIDAVITS AND CERTIFICATES, certificate not conclusive of regularity of proceedings, 3. proper form of certiiicate, to make arrest legal, 4. certificate when necessary, to make an arrest legal, 4. when poor debtor's oath has been administered, form of certificate, 39. , afBdavit of fraud pending examination of debtor before arrest, 56. debtor under a recognizance must wait for certificate, when, 100. affidavits upon mesne process, 150-153. affidavit; alteration of writ; arrest, 150. affidavit ; clauses omitted ; arrest, 151. affidavit; defendant instead of defendants, 152. affidavit; tort; mesne process, 153. certificates before arrest, 154-160. 26 402 INDEX. AFFIDAVITS AND CERTIFICATES — coniinuerf. certificate of oath of plaintiff when certificate was not required ; affidavit, 154. certificate of magistrate's satisfaction, 155. certificate; satisfactory cause ; arrest; recognizance, 156. certificate of magistrate; initials; signature, 157. certificate need not in terms authorize arrest in daytime, 158. certificate; affidavit; magistrate; attorney of creditor; arrest, 159. certificate by magistrate who is attorney of record ; offi- cer's liability; arrest, 160. affidavits upon execution, 161-165. affidavit; "good reason," 161. affidavit; " has " for " have; " distributive, 162. affidavit; execution for costs; arrest, 163. affidavit ; execution ; alimony ; arrest ; ' ' debt or damages ; ' ' divorce; "civil action," 165. certificates after arrest, 166-169. certificate by magistrate concerning officer's return, 166. certificate of magistrate not conclusive; notice, 167. certificate; description of magistrate; discharge; record, 168. certificate by justice, not by court; arrest; surplusage; officer's return, 169. action of tort lies for arrest without affidavit, when, note after 169. affidavit taken by a magistrate who is plaintiff's attorney ; effect upon officer's liability, note after 169. declaration containing counts in contract and tort ; effect upon affidavit, note after 169. certificate when necessary to make commitment legal, note after 256. magistrate's certificate before commitment, when neces- sary, 313. when affidavit and certificate expressly required by statute before commitment, 314. certificates not orders, but simply evidence that restraints upon arrest have been removed, 316. no certificate required by statute for commitment if debtor does not desire to take oath, 317. INDEX. 403 AFFIDAVITS AND CERTIFICATES — <;on(M«ec/. magistrate may amend erroneous certificate, 334. date of certificate may be corrected by oral testimony of magistrate, note after 355. whether afiBdavit is necessary before the issuing of notice to debtor, 356, 357. the certificate does not authorize the arrest, 362. when conclusive, note to 367. magistrate's certificate conclusive evidence of return, when, note after 367. certificate does not really authorize arrest, 371 a. notice to debtor without previous affidavit, 371 a. form of affidavit and certificate for arrest on mesne pro- cess, 376. affidavits for arrest should be made by attorney of creditor, when, 377. certificate properly should not pretend to authorize the arrest, 379. form for certificate of discharge without examination, 397. certificate of discharge from arrest after examination, 398. form of certificate of magistrate refusing to discharge debtor about to leave the state, 398. affidavit and certificate for arrest on mesne process in tort, 400. necessity for affidavit, on an application of judgment creditor for a citation, 402. form of certificate to be annexed by magistrate to written examination, 413. form of affidavit and certificate for arrest of judgment debtor after notice, 418. what to be annexed to the execution, 419. form of affidavit and certificate for arrest of judgment debtor about to leave the state, 421. certificate when debtor does not desire to take the oath, customary but not required, 426. form of certificate of discharge of debtor on non-attend- ance of creditor, 427. form of affidavit and certificate for arrest on charges of fraud, 428. 404 INDEX. AFFIDAVITS AND CERTIFICATES — continued. certificate of refusal of poor debtor's oath, form of, 431. certificate of refusal of oath, 434. what should be stated in certificate of refusal to admin- ister oath, 437. certificate of refusal to grant certificate for arrest of judg- ment debtor; additional forms, 438. certificate of failure to recognize or give bail; additional forms, 438. afl&davit and certificate for arrest of an attorney on mesne process ; additional forms, 438. ALIMONY. See Divorce. AMENDMENTS, of specifications of fraud, 56. of charges of fraud, 61. of charges of fraud by adding specifications, 64. memorandum of a recognizance may be amended, 123. of writ does not discharge bail, when, note after 148. of ofiicer's return as to service of notice, 184. of officer's returns, 254-256. erroneous certificate as to oath administered; amended by magistrate, 334. of record by magistrate, 348. APPEAL, from decision of magistrate on charges of fraud, constitu- tional, 68. from charges of fraud rightly entered at civil term of court, 69. objection to recognizance after appeal on charges of fraud, waiver of, 71. on charges of fraud; omission to file copies; waiver of objection, 72. on charges of fraud, what open on appeal by one party, 73. on charges of fraud, arrest after it on same execution, 74. by creditor on charges of fraud will not prevent the tak- ing of oath, 75. on charges of fraud, effect of, on right to arrest, 76, 77. upon charges of fraud, arrest after, 77. to superior court, how taken, 435. INDEX. 406 APPEAL — continued. on charges of fraud, effect of, on right to arrest, 436, 437. form for "a copy of all the proceedings;" additional forms, 438. APPEARANCE AND ATTENDANCE, failure of 'magistrate to attend within the hour fixed for examination, 17. waiver of, by creditor, 18. by attorney only, 19. absence of debtor from hearing by consent of magistrate, 21. by creditor ; debtor defaulted, 22. absence of debtor without permission may be afterwards sanctioned, 26. may be after the expiration of the hour, when, 28. debtor when bound to procure attendance of magistrate, 92, 93. to object to examination, 95. on Sunday, 96. breach of recognizance by non-appearance of magistrate, note after 123. distinction between, 327. hour allowed for both parties; discharge, 328. abandonment by creditor within hour, 328. adjournment; hour allowed for both parties and magis- trate, 329. appearance of debtor by attorney, 330. appearance without further proceedings; error of magis- trate not a discharge, 331. hour; jurisdiction; special appearance, note after 331. special appearance not a waiver of defects in notice or service, note after 331. advice of counsel not competent evidence as to, 346. of magistrate, waiver of, in case examination is post- poned, 408. APPLICATION OF A JUDGMENT CREDITOR BEFORE THE ISSUE OF NOTICE TO A JUDGMENT DEBTOR, for arrest of debtor not to be for three years, when, 39. general discussion, 356-367. 406 INDEX. APPLICATION OF JUDGMENT CREDIT OU — continued. ■whether affidavit is necessary before notice issues, 356, 357. meaning of "application," 359-367. meaning of word " authorize," 367. notice; ministerial act; magistrate's certificate conclusive of return of notification when, note after 367. manner of making, 376. practice in regard to, 402. APPLICATIONS TO JAILERS AND MAGISTRATES FOR POOR DEBTOR'S OATH, applications for poor debtor's oath to jailers and magis- trates under former statutes, 170. no address to jailer necessary in application to serve no- tice, 170. application to jailer indispensable, 171. application to jailer; custody, 172, application to jailer for poor debtor's oath, 173. application ; militia act; penalty, 174. application ; right to oath ; bastardy act ; time, 175. application; bastardy act; right to oath; orders, 176. statement of what is applied for, 1S6. ARREST. See Practice. certificate, when necessary to make legal, 4. after notice by magistrate having no jurisdiction, 15. after a certificate issued by a second magistrate having no jurisdiction, 16. after voluntary escape, note to 37. made legally possible, how, 46. pending debtor's examination before arrest, affidavit for, 56. pending appeal on charges of fraud, 76. test of legality of, after appeal upon charge of fraud, 77. illegal for want of capias in the writ, 117. illegality of, not waived by giving recognizance, note after 123. after debtor offered property, 145. made illegal by alteration of writ, 150. illegal, made on a defective affidavit, 151. affidavit as to leaving the state defective, 153. INDEX. 407 ARREST — continued. necessity of a certificate, 154. certificate defective, 156. the word "authorize" not necessary in the certificate, 158. illegal when certificate made by magistrate who is attorney for creditor, 159, 160. on execution for costs, 163. on contract and on tort, reason of distinction between, 164. on execution for alimony, 165. if made without affidavit, action of tort will lie, when, note after 169. officer need not search for goods or land before making, 243. for non-payment of taxes, 253. definition of, 258. touch is not necessary, 259. by laying on hand, 260. previous attachment, 262. subsequent attachment, 262. waiver of privilege of party attending court, 263. of deputy jailer by deputy sherifE, 264. in aid of sherifE; writing not necessary, 265. breaking outer door; family and boarders, 266. after poor debtor's oath; pleading; false swearing; con- viction, 267. no declaration in writ; pleading; abatement, 268. on bill in equity, 269. detaining debtor without commitment, 270. after property shown; writ of execution in alternative, 271. discontinuance for insufficient bail; second aiTCst; service of notice, 272. after voluntary escape; copy of process for jailer, 273. by collector of taxes ; property offered, 274. rescue; escape; call for aid, 275. escape ; duty of officer to make reasonable exertion ; jury, 276. pleading; declaration; authority of constable; recogni- zance, 277. 408 INDEX. ARREST — continued. no search returned; alternative, 278. escape; recaption; rescue, 279. spendthrift under guardianship, 280. after discharge on process founded on the judgment, 281. claim increased by costs; bond, 282. after sunset; execution for costs only, 283. on execution for alimony, 284. arrest of married woman, 285. after false representations about property attached, note after, 285. breach of contract not to arrest; damages, note after, 285. creditor leaving arrest to officer's discretion, note after 285. deputy sheriff a party; interest of sheriff, note after 285. effect of law of another state, note after 285. for taxes ; false imprisonment, note after 285. by one officer on several writs, note after 285. of a member of a corporation on an execution against it, note after 285. of person fraudulently induced to come into state, note after 285. of spendthrift under guardianship; insane person, note after 285. of woman on execution for costs only, note after 285. officer ignorant that magistrate signing certificate was attorney of plaintiff, not liable, note after 285. officer not liable for arrest on execution although discharge in insolvency exhibited ; command and execution, note after 285. on execution for costs in bastardy process, note after 285. second arrest after absence of justice, note after 285. taking here by bail from another state, note after 285. touch not necessary, note after 285. void execution ; voluntary imprisonment; damages, note after 285. after payment by one of two persons liable, note after 285, ■ if upon execution illegally issued, action for false impris- onment will lie, note after 285. INDEX. 409 ARREST— continued. insolvency, if not pleaded, not to be availed of, when, note after 285. of a person having a writ of protection, note after 285. wrong date in execution; person arrested may bring audita querela, when, note after 285. of deputy jail-keeper by a coroner; commitment of pris- oner to his own custody, 304. contract by officer to forbear from, note after 304. after voluntary escape, note after 304. may be without magistrate's certificate, when, 313-315. debtor's voluntary consent to arrest on same execution after release by creditor, 324. of female judgment debtor, note after 326. officer's return conclusive proof of, when, 350. "authorize," meaning of, 367. not really "authorized" by certificate of magistrate, 371 a. what authorizes arrest; "sunset clause;" condition in certificate, 371 a. after sunset, when allowed, 378. on mesne process, 382. debtor arrested to be taken before what magistrate, 392. of judgment debtor about to leave the state, 421. form of affidavit and certificate for arrest of judgment debtor about to leave the state, 421. on charges of fraud, 428. on warrant of Superior Court, 435. of an attorney, form for certificate; additional forms, 438. certificate of refusal for arrest of judgment debtor; ad- ditional forms, 438. ASSIGNMENT, of property to creditor before oath, 431. ATTACHMENT, bond to dissolve not affected by a recognizance, 134. dissolved by reference of the action and all demands, 136. of property before arrest; arrest void, 262. of property void made after arrest, 262. bond to dissolve, judgment on it not judgment on origi- nal cause of action, 282. 410 INDEX. ATTENDANCE. Sea Appeakancb and Attendance. ATTORNEYS, service of notice upon, 231-235. arrest of, form for certificate; additional forms, 438. B. BAIL. See Bonds ; Practice ; Principal and Surety. from another state may take principal here, when, note after 285. when to support prisoner in jail, 308. notice of surrender of principal by bail valid though with- out date, note after 342. defendant arrested on mesne process may give, 385. form of bail bond, 385. bond runs to whom, sufficiency of, 386. approval of bail bond by magistrates, 387. bond by other than a party ; defendant need not execute bail bond, when, 389. not to be allowed after sentence on charge of fraud, 390. by defendant about to leave state after refusal of magis- trate to discharge, 399. judgment debtor cannot give, when, 420. certificate of failure to give, additional forms, 438. BANKRUPTCY AND INSOLVENCY, effect of discharge on sentence upon charges of fraud, 54. filing claim, effect of, upon poor debtor proceedings, 55. will affect poor debtor proceedings, when, 56. charges of fraud, note after 77. discharge in, will affect recognizance when, 105. insolvency, discharge in, effect of, on bond for jail limits, 135. action by assignee in insolvency of obligee on a bond, note after 148. insolvency when not a defence unless pleaded, note after 285. discharge in insolvency will exempt debtor fiom arrest, when, note after 285. bankruptcy, when not a defence unless pleaded, note after 355. rule as to delay on account of, 438. INDEX. 411 BASTARDY, sentenced under bastardy act, right to poor debtor's oath, 175, 176. arrest on execution for costs, note after 285. surrender of one arrested under bastardy act to jailer instead of to court, 342. BONDS. See Bail; Pkactice; Surety. bail bond for ninety days; obligation by statute and com- mon law, 124. bail bond, St. 1784, e. 10; record; filing with writ, 125. ' bail after refusal of poor debtor's oath, and commitment, 126. bond; liberty of yard; amount of penalty; double the sum, 127. bond for liberty of yard; penalty; less than statutory sum, 128. bond for prison limits ; magistrate's approval of, not essen- tial to validity, 129. bond for prison limits by surety alone, 130. bond by sureties only, no principal, 131. bond for jail limits ; insane person ; default of surrender, 132. bond for liberty of yard ; after voluntary escape and second arrest consented to ; escape, 133. bond to dissolve attachment not affected by recognizance, 134. bond for jail limits; discharge in insolvency; surety, 135. bond ; bail ; reference ; surety ; attachment ; discharge, 136. bond for prison limits for ninety days ; discharge by poor debtor's oath on ninety-first day, 137. bond on mesne process after judgment; surrender; time, 138. bond for ninety days; time; surrender, 139. bond for prison limits; escape; jail limits changed, 140. bond; surety; time of contract; escape; jail limits changed, 141. bond for " exterior bounds; " escape, 142. bond; constitutional law; legislation confirming limits fixed by the sessions; escape, 143. bond for prison limits; waiver; adjournments; penalty, 144. 412 INDEX. BONDS — continued. bond for prison limits ; arrest after debtor offered prop- erty, 145. bond for prison limits ; proof of breach, 146. bond for jail limits; new promise; judgment on old con- tract; escape, 147. bond; jail; synonymous with jail limits, 148. to deputy sheriff void, when; statute, note after 148. whole penalty, note after 148. action against sheriff for taking insufficient bail, note after 148. action by assignee in insolvency of obligee, note after 148. bail bond must run to sheriff, note after 148. bail not discharged hj amendment of writ, when, note after 148. death of principal, note after 148. given by third party, note after 148. liberty of yard; ex post facto laws, note after 148. names mistaken, effect of, note after 148. prison limits ; time of contract, note after 148. reciting " sureties," but signed by principal and one surety, good against the surety, note after 148. wife of principal as one surety on a bail bond, note after 148. to dissolve attachment, judgment on it, not judgment on original cause of action, 282. for jail limits, meaning of word " daytime " in, 289. for jail limits, if for less than double the amount, sheriff liable, 299. for jail limits, approved by only one justice, sheriff liable, 302. of constables, 382. form of bail bond, 385. bail bond runs to whom, sufficiency of, 386. bail bond, approval of, by magistrate, 387. when need not be executed by defendant, 389. BOOKS AND ARTICLES, list of. Appendix, pp. 394-400. BURDEN OP PROOF. See Evidkncb. INDEX. c. CERTIFICATES. See Affidavits and Certificates. CHARGES OF FRAUD BEFORE ARREST UPON EX- ECUTION, AND AFTER ARREST UPON MESNE PROCESS OR EXECUTION. See Fkaud. COMMITMENT. See Discharge. commitment, definition of, 258. commitment by order of court, 300. commitment of debtor by bail, 312. magistrate's certificate, when necessary, 313. statute expressly requires affidavit and certificate when, 314. distinction between authority for arrests and commit- ments and that for discharges, 315. commitment to jail on the order of the execution; cer- tificate, 316. if debtor does not desire to take the oath, no certificate of magistrate required by statute before commitment, 317. commitment to farthest jail; officer foUows creditor's discretion ; mode of service, 318. commitment; on erroneous copy; subsequent correction, 319. certificate before commitment when required, note after 322. commitment after death of plaintiff, note after 322. commitment by magistrate ; contempt, note after 322. action by indorsee against indorser after commitment, note after 326. commitment of principal after breach; action against sureties, note after 326. commitment of defendant about to leave state and failing to satisfy magistrate, 398, 399. commitment of judgment debtor to jail, 426. COMMONWEALTH, debtors of, rights of, when arrested, 424. CONSTABLES. See Officbks. 414 INDEX. CONSTITUTIONAL LAW. See Appeal. appeal from decision of magistrate on charges of fraud, constitutional, 68. statute confirming jail limits, 143. CONTEMPT, none for refusing to obey magistrate whose jurisdiction is ended, 29. COPIES. See Fraud. COSTS. See Executions. arrest of woman on execution for costs only, note after 285. COUKTS. See Jurisdiction. jurisdiction of United States commissioners, note after 37. notice on an execution from United States court, 200. appeal to Superior Court, 433. judgment of Superior Court if debtor found guilty, form of, 435. warrant of Superior Court io bring debtor into court, 435. Superior Court, proceedings on appeal to, 435. D. DECLARATION. See Pleading. DEFAULT. before one magistrate does not give second magistrate jurisdiction to issue certificate for arrest, 16. of debtor caused by mistaken information of magistrate, 20. by creditor's not appearing at second hearing, 23. failure to appear not necessarily a breach of recognizance ; subsequent opportunity for notice, 97, 98. none where debtor committed as a lunatic, 132. debtor to be discharged without examination on default of creditor, note after 336. judgment debtor making default, certificate for arrest may issue, 418. of judgment debtor at examination before arrest, when for his advantage, 422. INDEX. 415 DEFENDANT. See Plaintiff. creditor opposing the allowing of poor debtor's oath is in the position of a defendant, 44. DISCHARGE. See Commitment. validity of, dependent upon preliminary proceedings, 2. on failure of creditor to appear, 19. not valid made on Fast Day, 27. debtor not entitled to if found guilty of a charge of fraud, note to 45. from obligation of recognizance, 106-112. not to be invalidated by amendment of officer's return, 256. from arrest exempts from subsequent an-est, when, 281., voluntary, by officer, not a bar to action on judgment, note after 304. of debtor for failure of creditor and bail to support, 308. jailer shall discharge debtor if support not furnished, 311. validity of, not dependent upon the taking of the oath or the making of certificate, 320. discharge without taking oath; charges of fraud, 321. discharge not invalidated by unnecessary oath, 322. unauthorized settlement by attorney, and discharge ob- tained by fraud, note after 322. liberation by creditor, satisfaction of judgment, note after 322. of debtor from imprisonment with consent of creditor satisfies judgment, 323. sureties discharged by commitment of principal, note after 326. within the hour allowed creditor in which to appear, void, 328. omitted by error of magistrate, 331. sheriff competent witness to prove, 355. for non-payment of fees by creditor, 370. debtor entitled to, without payment of fee, when, 371. of debtor when creditor fails to attend examination, 397. of defendant without examination, form for certificate of, 397. may be without a certificate when there is no examina- tion of debtor, 397. 416 INDEX. DISCHARGE — continued. use and meaning of the word " discharge," 397. of debtor after taking oath that he does not intend to leave the state, 423. debtor in jail may be discharged, how, 426. of debtor without examination, 427. of debtor found not guilty of charges of fraud, 435. of debtor after expiration of sentence, 436. DIVORCE, on an execution for alimony, wife may file charges of fraud against husband, 58. execution for alimony did not require any affidavit and certificate in order to arrest ; does it now ? 165. execution for alimony, person arrested may take oath, 284. claim for alimony against estate not lost by imprisonment of person, when, note after 326. E. ESCAPE AND RESCUE, allowed by officer, 133. change of jail limits, 140, 141. from bounds made smaller after bond given, 142. prevented by statute confirming the limits of jail yard, 143. determined by jail limits in force at time of original contract, 147. rescue not conclusively proved by officer's return, 252. second arrest after voluntary escape, 273. officer when not liable for escape, in case of a rescue, 275 officer not bound to call for aid, 275. officer, to use reasonable exertions, in his discretion, to prevent, 276. rescue after a taking on fresh pursuit, 279. officer's negligence cured by recaption on fresh pursuit, 279. close confinement day and night, 287. exterior limits of yard; public streets, 288. daytime; in prison bond, 289. in jail yard at night; interest; penalty, 290. INDEX. 417 ESCAPE AND RESCVE, — continued. going into yard to privy, 291. agency of prisoner required; removal and death, 292. debtor enlists; is rescued from prison, 293. rescue, debtor taken by United States soldiers, 293. liberty of yard; appropriation of apartments as jail by ancient usage, 294. sheriff's neglect to control house under his authority, 295. liberty of yard after St. 1808, c. 92, 296. mistaken information by sheriff, 297. jail limits ; low-water mark, 298. bond for less than double the amount ; liberty of yard, 299. after commitment by order of court; no copy of process, 300. into another state ; rescue then of no avail, 301. rescue outside the state, no defence to an escape, 301. bond approved by only one justice, 302. demand by jailer of security for support; demand by prisoner; informality, 303. arrest of deputy sheriff by coroner ; absence of sheriff, 304. contract by officer to forbear from arrest, note after 304. audita querela can be maintained, when, after voluntary escape and second arrest, note after 304. damages against sheriff, note after 304. evidence; debtor unable to pay; mitigation of damages, note after 304. fi-om yard of house of correction, note after 304. liberty of yard; whether whole building was jail, note after 304. measure of damages, note after 304. prison limits, note after 304. pursuit; arrest, note after 304. retrospective laws, note after 304. voluntary discharge by officer not a bar to action on judg- ment, note after 304. voluntary escape, and arrest afterwards, note after 304. whole sum recovered for which prisoner held, note after 304. voluntary escape no defence to action on judgment, note after 326. officers may require aid in case of, 384. 27 418 INDEX, EVIDENCE. See Amendments; Affidavits and Certifi- cates; Recognizances; Returns of Officers. to show jurisdiction of magistrates, 10. burden of proof on debtor applying to take the oath, 39. burden of proof is upon creditor on an examination of debtor before arrest, 40. of acts "since the cause of action accrued;" divorce; alimony, 58. preponderance of, only required on charges of fraud, 65. on trial of charge of intention not to pay, plaintiff must prove that the debt was contracted, 66. record of judgment in Superior Court conclusive to prove conveyance fraudulent, 67. of fraud in examinations before and after arrest, 77, note after 77. of fraudulent acts ; three years before commencement of original action, 77. cross-examination concerning fraud in examinations be- fore and after arrest, note after 77. breach of recognizance shown by parol, 99. memorandum of magistrate is evidence of a recognizance taken orally, 113. magistrate's recitals in memorandum of recognizance evidence of what, 114. parol, cannot control extended record of magistrate, 115. magistrate's memorandum of a recognizance, when not sufficient proof, 116. sufficiency of writ to be determined by inspection, 117. court know judicially a magistrate's authority, 118. magistrate's refusal to order examination of debtor im- material as evidence of a breach of recognizance, 119. bond for jail limits not prima facie evidence of a breach, 146. certificates of magistrates conclusive of what facts, 166, 167. waiver may be proved orally, when, 223. of who regarded as an agent, 237. officer's return of service conclusive of what facts, 241. return as evidence, 244-253. to explain officer's return, 249. certificate of collector of taxes, concerning arrest only prima facie, when, 253. • INDEX. 419 EVIDENCE — continued. amendment of return as evidence, 254-256. burden of proof, where, in the several issues between debtor and creditor, 343. burden of proof ; recognizance, 344. proof of magistrate's authority, 34S. appearance; evidence of advice of counsel, 346. record of magistrate ; copy ; notice ; officer's return , 347. amendment of record, 348. original notice with officer's return, 349. officer's return conclusive against plea denying arrest; scire facias, 350. parol proof that service was upon proper person, 351. efiect of release ; waiver of appearance ; recognizance, 352. statements of officer who made arrest; attendance, 353. inspection of writ ; erasure of capias, 354. sherifi, witness of creditor's consent to discharge, 355. bankruptcy not pleaded; judgment conclusive evidence, when, note after 355. charge of fraud; recitals in deeds not admissible, when, note after 355. charges of fraud stricken out; failure to except to admis- sion of, note after 355. impeaching one's own witness when adverse, note after 355. of duress; threat to arrest for slander, note aft,er 355. of poor debtor's oath; jailer's register, note after 355. of purchase of note to procure illegal arrest, note after 355. of waiver of service by attorney on sick bed, through messenger, note after 355. oral testimony of magistrate; certificate, note after 355. privilege; witness, note after 355. record of jurat conclusive, when, note after 355. record; minutes by magistrate's clerk; no recollection by magistrate, note after 355. that debtor had no property may be shown in mitigation of damages, when, note after 355. burden of proof on defendant applying to take the oath as to leaving state, 398. form of oath for witness and party testifying, 398. 420 INDEX. EVTDENC E — continued. what rules of, applicable to poor debtor hearings, 416. preponderance of, sufficient on a trial of a charge of fraud, 433. EXAMINATIONS, of debtor after decision in his favor, 29. of debtor after release by agreement, 31. of debtor applying for oath may extend to question of property, when, 39. of debtor, not to be for three years, when, 39. of debtor before arrest; affidavit of fraud, 56. discharge without, note after 77. evidence of fraud, 77, note after 77. mention of time and place for, in a recognizance, 85, 86. of debtor, refusal of magistrate to order, 119. statement in notice to creditor of time for holding; year omitted, 205. of debtor may be held in the evening, 206. assignment pending, note after 326. of debtor to be without delay, 396. to be none when creditor fails to appear, 397. of debtor applying to take the oath as to intention to leave the state, 398. of debtor before arrest on execution, 401. of judgment debtor before arrest may be postponed by magistrate, 405. of debtor before arrest, mode of taking, 409^16. form for the beginning of, when in writing, 413. when it will be deemed completed, 413. before arrest ; default of judgment debtor, 422. of debtor, when may be without notice, 423. discharge of debtor without, 427 for poor debtor's oath is without reference to charges of fraud, when, 429. for poor debtor's oath, order of proceedings, 431. order of proceedings in the discretion of the magistrate, 433. ruks as to, 438. EXECUTIONS, not necessary at poor debtor hearing until, when, 101. for costs, what are, 163. INDEX. 421 EXECUTIONS — continued. for alimony, arrest on, 165. description of, in a notice, 190, 191. for benefit of a third party, service of notice to be on nominal plaintiff, 229. if execution for costs only, arrest may be after sunset, 283 for alimony, person arrested on, may take the oath, 284. for costs, arrest of woman, note after 285. arrest on, in bastardy process, note after 285. arrest and commitment is by authority of the capias con- tained in execution, 316. erroneous copy of, left with jailer, 319. partly satisfied by levy, debtor may be committed for bal- ance, 325. arrest upon, after death of creditor, 326. is void if issued while debtor is imprisoned on prior eie- tion on same judgment, note after 326. effect of capias clause, 367. form of, after Statute of 1855, c. 444, note after 367. common form of, and on trustee process, 419. judgment debtors arrested upon, have what rights, 424. from Superior Court after appeal, 435. FAST DAY. See Holidays. FEES OF MAGISTRATES, magistrate's remedy for fees, 369. discharge of debtor for non-payment by creditor, 370. discharge; creditor not appearing, who is to pay for cer- tificate, 371. magistrates should be paid by salaries, note after 371. for hearing an application for a certificate of arrest, 375. customary to receive no fee for hearing, if application for a certificate of arrest not granted, 377. on discharge of debtor without examination, 397. on discharge of defendant after examination as to leaving state, 398. for examination of debtor before arrest to be paid by creditor, 415. 422 INDEX. FEES OF MAGISTRATES — con(m«erf. for attendance at jail, 426, 427. additional, rules as to, 438. FORMS, Form 1 — for affidavit for arrest on mesne process in con- tract, with magistrate's certificate, 376. Form 2 — for writ, with declaration inserted, 379. Form 3 — for bail bond on mesne process, 385. Form 4 — for brief certificate of recognizance to be in- dorsed upon writ, 394. Form 5 — full form for memorandum of recognizance, 394. Form 6 — for notice to plaintiff that defendant wishes to take the oath that he does not intend to leave the state, 395. Form 7 — for continuance in the absence of magistrate before whom examination is pending, 396. Form 8 — for certificate of discharge without examina- tion when there is no appearance for plaintiff, 397. Form 9 — for common oath for witnesses, 398. Form 10 — for certificate of discharge from arrest upon mesne process after examination, 398. Form 11 — for certificate after defendant's failure to sat- isfy magistrate that he does not intend to leave the state, 398. Form 12 — for affidavit and certificate for arrest on mesne process in tort, 400. Form 13 — for notice or citation to a judgment debtor, 403. Form 14 — for written examination of debtor, 413. Form 15 — for certificate annexed to written examina- tion, 413. Form 16 — for affidavit and certificate for arrest of judg- ment debtor after notice, 418. Form 17 — for common form of execution, 419. Form 18 — for execution on trustee process, 419. Form 19 — for affidavit and certificate of arrest when judgment debtor intends to leave the state, 421. Form 20 — for notice to judgment creditor of debtor's desire to take oath or oaths, 426. Form 21 — for certificate of discharge of judgment debtor without examination on non-attendance of creditor, 427. INDEX. 423 FORMS — continued. Form 22 — for affidavit of charges of fraud and certificate on execution, 428. Form 23 — for refusal of the poor debtor's oath, 431. Form 24 — for.mittimus after sentence of guilty in a trial upon a charge of fraud, 435. Form 25 — for warrant to bring debtor into court, 435. Form 26 — for judgment against debtor found guilty of charges of fraud on appeal, 435. Form 27 — for " a copy of all the proceedings " upon an appeal by either party after trial upon a charge of fraud, 438. Form 28 — for certificate of refusal to grant certificate for arrest after examination of judgment debtor, 438. Form 29 — for certificate of failure to recognize or give bail after arrest, 438. Form 30 — for -affidavit and certificate for arrest of an attorney upon mesne process, 438. FRAUD. See Property, Fraud, &c. question of, not res adjudicata on application of debtor to take the oath, 38. question of, not a part of issue in examination of debtor before arrest, 41. when relevant, and when irrelevant to issues in poor debtor examinations, note to 45. cons'piracy to take poor debtor's oath, note after 77. evidence of, in examination of debtor before and after arrest, 77, note after 77. no jurisdiction to enter judgment on, in case of discharge without examination, note after 77. three years before commencement of original action, evi- dence of, 77. person fraudulently induced to come into state not liable to arrest, when, note after 285. question of, how related to the issue at examination of debtor before arrest, 417. Charges of Fraud. when may be stricken from record, note to 37. examination upon same extends to what, 38. general nature of, 46. made .under § 17 are simply one mode of removing the statutory restraints upon arrest, 46. 424 INDEX. FRAUD — continued. mixed civil and criminal nature of the proceedings, 47-50. appeal; motion in arrest of judgment, 47. report after verdict to supreme court, 48. order of proceeding, 49. creditor need not proceed to trial after making charges of fraud, 49, 50. made after debtor applies to take the oath are by vcay of answer, 50. abandonment of charges; waiver; debtor's promises to pay, 51. new oath after sentence, 52. on mesne process, may be filed, when, 53. discharge in bankruptcy ; appeal, 54. punishment; bankruptcy; filing claim, 55. affidavit of, pending examination of debtor before arrest; specifications; amendment, 56. by whom filed, 57, 58. signed by one partner, when sufiicient, 57. filed by wife against husband; alimony, 58. specifications and amendments, 59-64. specifications, when necessary, 59. not in alternative, 59. form of specifications, 60. amendment, 61. specifications ; trial ; appeal ; all charges open, 62. intention not to pay, 63. amendment by specifications, 64. civil proceedings ; preponderance of evidence; witnesses, 65. intention not to pay ; evidence, 66. evidence of other frauds; record of former conviction conclusive, 67. appeal; constitutional, 68. appeal to be entered at civil term, 69. motion to dismiss appeal after copies read, 70. appeal ; motion to dismiss ; waiver ; recognizance by one partner, 71. appeal; copies in superior court; record, 72. appeal by one party ; aU charges opened, 73. appeal; arrest after it on same execution, 74. INDEX. 425 FRAUD — continued. poor debtor's oath administered after appeal, 75. appeal; judgment; substitute for oath ; charges of fraud ; arrest; jurisdiction; oath refused for fraud, not for possession of property, 76. charges abandoned by creditor; discharge without exam- ination ; appeal, note after 77. appeal; bankruptcy, note after 77. form of specifications ; gaming ; amounts, note after 77. intention not to pay, note after 77. origin and nature of, note after 77. (See page opposite title-page.) continuance and discharge without pleading to, not a breach of recognizance, when, 104. effect of judgment of not guilty upon necessity of admin- istering the oath, 321. no judgment to be entered when creditor defaults, note after 336. failure to except to the admission of evidence, effect of, note after 355. recitals in deeds, not competent evidence when, note after 355. filed more frequently after opportunity for discovery of fraud by examination before arrest, 422. arrest on, 428. first charge of § 17 is surplusage, when, 428. need be no trial of, on examination for oath, 429. trial of, 432. time for filing, 433. pleading to, 433. sentence of guilty, 434. effect of a finding of guilty, 435. effect of a finding of not guilty, 435. decision upon, implies what as to property, 437. question upon how connected with question as to right to take the oath, 437. rules of practice, 438. 426 INDEX. H. HOLIDAYS, magistrate may adjourn case on Fast Day, 27. magistrate no jurisdiction to discharge on Fast Day, 27. attendance of magistrate on Sunday, 96. when Sunday iticTuded' in time allowed for notice, 224. Sunday, when excluded in computing time for service of notice, note after- 241. HOUSE OF CORRECTION, sentence to, on charge of fraud, 434, 436. I. IMPRISONMENT, breach of recognizance caused by, 108. imprisonment not now satisfaction of judgtnent debt; re- lease, 323. imprisonment; arrest after release by creditor on same execution ; audita querela, 324. imprisonment; part satisfaction of execution by levy; subsequent arrest and imprisonment for balance, 325. imprisonment after death of creditor, 326. action ' by indorsee agamsb indorser after commitment, note after 326. action by indorser who has paid note against maker in jail on execution, note after 326. action of debt on judgment after surrender of principal, note after 326. assignment pending examination, note after 326. commitment of principal after breach; action against sureties, note after 326. debt on judgment after imprisonment and oath, note after 326. escape; arrest; voluntary discharge; action on judgment, note after 326. execution void if issued while debtor is imprisoned on prior execution on same judgment, note after 326. INDEX. 427 IMPRISONMENT — conlinued. female judgment debtor's liability to indorser, notwith- standing arrest b^ holder, of note, note after 326. no action on judgment after imprisonment on execution and bond, note after 326. of principal on criminal sentence will discharge bail, when, note ^ter. 326. , scire facias against trustee after commitment of debtor, note after 326. : ; , sureties discharged by commitment of. principal, when, oote after 326. when satisfaction ; bail, note after. 326. how far abolished in Massachusetts, note after 367. INSOLVENCY. See Bankruptcy and Insolvency. ISSUES. See Pkopkrty, Fkaud, &c,. : , on examination of debtor before arrest, is what, 40. in different poor debtor hearing?^, briefly stated, note after 45. on examination to take the oath, and trial of charges of fraud, 76, 7?. , on application to take the oath as to leaving the state, 398., on examination of debtor before arrest, what, 411. in examination for poor debtor's oath, is what, 430,431. finding of,. magistrate conclusive on question of debtor's. present property, 436. on application for poor debtor's oath, 437. . J. JAIL, includes what, note after 304. sentence to, on charge of fraud, 434, 436. JAILERS. See Applications to Jailers and Magis- trates; Pkactice; Support; Surrender. to have a copy of the process, 273. no copy of process required if commitment by order of court, 300. 428 INDEX. JAIL LIMITS. See Escape and Rescue. JUDGMENT DEBT, effect of impi-isonment upon. See Imprisonment. JURISDICTION, of magistrates, peculiarities of, 1. discharge; dependent upon preliminary proceedings, 2. preliminary proceedings irregular; certificate not conclu- sive, 3. certificate; whether conclusive; qusere, 4. of magistrates in the matter of arrest, 4. recognizance; condition to appear in " court," 5. special justice, 6. two justices; substitute, 7. notice; one justice of the quorum, 8. , justice of peace and quorum; recital; condition prece- dent; finding other magistrate, 9. evidence; justice of peace and quorum; finding other magistrate, 10. special justice; recognizance, 11. two justices after amended statute, 12. recognizance; condition; justice of the peace; amend- ment, 13. magistrate; changing domicile ; trial justice, 14. notice to debtor to appear; recognizance; arrest; another county, 15. , • arrest; default; notice; waiver; second magistrate, 16. attendance; magistrate absent; hour, 17. condition ; waiver of attendance ; magistrate and debtor, 18. appearance by attorney only ; discharge, 19. mistaken information by magistrate about time ; default of debtor ; appearance, 20. attendance of debtor; recognizance; recess, 21. magistrate may allow debtor to depart from hearing for a reasonable time, 21. jurisdiction exhausted by expiration of hour; attendance, 22. adjournment ; creditor not appearing, 23. hour ; keeping hearing open, 24. magistrate, power of, to keep hearing open, 24-26. attendance; hour; keeping hearing open, 25. INDEX. 429 JURISDICTION — continued. attendance; adjournment; recess, 26. fast day; discharge; adjournment, 27. attendance of magistrates and parties, 28. dependent upon the notice to appear, 28. not exhausted when neither party attends during the hour for hearing, 28. examination of debtor after decision in his favor ; con- tempt, 29. adjournment after refusal of oath, 30. examination after release by agreement, 31. cannot be given to magistrate by agreement, 31. magistrate interested, 32. creditor's attorney's clerk as magistrate, 33. debtor's attorney as magistrate, 34. examination; revision of magistrate's decision; writ of certiorari, 3S. application for oath concerning leaving state; res adjudi- cata; writ of prohibition, 36. application after recognizance, 37. arrest after voluntary escape, note after 37. charges of fraud stricken from record, note after 37. magistrate not present within hour; parties present; breach of recognizance, note after 37. ■ magistrates; United States commissioners, note after 37. ne exeat ; arrest and poor debtor's oath, note after 37. two justices of the peace and of the quorum, note after 37. magistrate has none under issue in examination of debtor before arrest to make a iinding of fraud as such, 41. of magistrate on application of debtor to take the oath, 43. when dependent on debtor's application to take the oath, 44. issue on application to take the oath, 76. ^ none to administer oath and enter judgment on fraud if discharge without examination, note after 77. of second magistrate to take a recognizance, 78. recital of, in recognizance, 79. under recognizance, jurisdiction begins within the thirty days, 91. 430 INDEX. JURISDICTION — continued. magistrate has not jurisdiction after judgment satisfied by one of gevexal judgment debtors, 106. how stated inplefiding, 1X8. . of magista-ate- is exhausted by , non-appearance within houi% when, note after 123. ' . dependent on validity of notice, 177. not affected by error in middle initial in copy of notice if officer's return states that he serveda.true copy, 183. magistrate has: none to administel' oath on creditor's de- fault; note after 336. magistrate has, to grant application for arrest on mesne process in any county, .373. of magistrate to examine debtor before arrest on execu- tion, 401. whether any, to administer oath when debtor is entitled to discharge without it, 427. of Superior Court, extent of, on an appeal from decision of magistrate on charges of fraud, 437. JUSTICE OF PEACE. See Magistrates. JUSTICE OF PEACE AND QUORUM. See Magistrates. M. MAGISTilATES. See Fem op Magistrates ; Jurisdiction. jurisdiction of, peculiarities, 1. -special justice acting in place of justice, jurisdiction of, 6. Justice of the peace and of the quorum, two required to act, when, 8, 12. justice of peace and quorum, jurisdiction of, depends upon what, 9, 10. special justice, 11. justice of the peace, jurisdiction of single justice under statutes as amended, 13. trial justice, jurisdiction terminated by change of domi- cile, 14. jurisdiction' of a second, when a first becomes incompe- tent to. act, 14. master in chancery, jurisdiction to issue notice to be served outside his own county, 15. failing to attend within the hour, 17. Index. 431 MAGISTRATES — confeued. mistaken information 'about time given by, 20. may keep hearing open beyond the hour, 24, 26. cannot act When intei-ested, 32. may act though clerk of creditor's attorney, 33. debtor's attorney as, 34. revision of magistrate's decision, 35. having no jurisdiction may be restrained by a writ of prohibitioii, 36. what magistrate may act when debtor delivers himself under recognizance, 37. not present within the hour, n<3te after 37. system of two justices of the peace and of the quorum, how long in force, note after 37. United States commissioners can act, when, note after 37. need not be named in recognizance,. 83, 84. debtor to procure attendance of, when, 92, 93. refusal of, to order examination of debtor, 119. non-appearance of within hour causes a breach of recog- nizance, when, note after 123. not liable for error in taking recognizance, when, note after 123. approval of, not essential to validity of bond for prison limits, 129. signature of surname with initials of Christian names held sufficient, 157. attorney for creditor cannot act as magistrate, to take affidavit, and make certificate, 159. certificates of, conclusive of what facts, 166. what a sufficient description of; 168. individual jurisdiction, and not as justice of court, 169. not fatal error for magistrate to speak of himself in a certificate as " justice of court;" 169. plaintiff's attorney not to' act' as, to take affidavit for arrest, when, note after 169. issuing of notice a ministerial act, 178. need not be named in notice to creditor, 203. signature of, should designate official capacity, 207. decision as to sufficiency of notice'nbt conclusive, ,211. issuing notice contrary to debtor's instructions^ 215. certificate signed by magistrate who is attorney of plain- tiff, effect upon legality of arrest, note after 285. 432 INDEX. MAGISTRATES —confe'nued. issue of mittimus after senteuce upon a charge of fraud, 315. allowed one hour in which to appear at hearing, 329. when error of, in omitting to discharge, wiU not amount to a discharge, 331. justice of peace not present within the hour; special ap- pearance to move to dismiss, note eifter 331. may amend erroneous certificate, 334. have no jurisdiction to administer oath on creditor's de- fault, note after 336. authority of, may be proved by parol, 345. record of, evidence of notice, 347. may amend record, 348. oral testimony of, admissible when, note after 355. record not written or signed by, not evidence when, note after 355. justices of peace have power only to issue notices to judg- ment debtors, 358. issuing of notice to debtor a clerical duty, 363. meaning of word " authorize," 367. notice issued by, bearing date when magistrate out of state, note after 367. should be paid by salaries, and not by fees, note after 371. do not by their certificate i-eally authorize arrest, 371 a. may grant applications for arrest on mesne process in any county, 373. what, may hear and grant applications for certificates of arrest on mesne process, 374. fees of, for hearing an application for a certificate of ar- rest, 375. should not pretend to authorize arrest, when, 379. should keep record, 381. approval of bail bond by, 387. before whom debtor to be taken when arrested, 392. to examine surety or sureties offered on a recognizance, 393. jurisdiction of, begins when he issues notice of desire to take the oath, 395. failure of, to attend hearing, 396. INDEX. 433 MAGISTRATES — continued. to examine debtor without delay, 396. may postpone examination of judgment debtor before arrest, 405. duty of creditor to procure attendance of magistrate at examination before arrest, qucere, 406. one magistrate may appear and continue a hearing ap- pointed before another, 407. duties of, in examination of debtor, 412, 413. examination of debtor may be out of the presence of, 415. judgment debtor taken before, privileges of, 420. classification of rights of judgment debtors taken before, 424. to discharge debtor without examination, when, 427. sentence of debtor, guilty of charge of fraud, 434. rules for hearings and examinations, 438. MASTER IN CHANCERY. See Magistrates. MESNE PROCESS. See Practicb. when charges of fraud may be filed, 53. affidavits before avrest on, 150-153. defective affidavit for arrest in action of tort, 153. MITTIMUS, form of, 434. after sentence on a charge of fraud, 434. from Superior Court, when will issue, 435. N. NAME. See Bokds ; Notice. NE EXEAT, person arrested upon writ of, may take poor debtor's-oath, when, note after 37. NOTICE. See Service of Notice. issued by one justice of quorum held invalid, 8. signature with initials of Christian name only, 157. certificate of magistrate conclusive of regularity when, 167. origin of the cases upon notice, 177. notice ; ministerial act by magistrate ; application by jailer to magistrate, 178. 28 434 INDEX. NOTICE — continued. necessity of notice, 179-182. notice'; condition for, in recognizance, 179. notice ; recognizance omitting this condition, 180. notice; recognizance; waiver, 181. notice ; acceptance or waiver by officer, 182. proof; return conclusive; error in copy; jurisdiction, 183. proof; amending officer's return, 184. notice; preEBnble; construction, 185. statement of what is applied for, 186. notice; application to' magistrate; poor debtor's oath, technicalty, 186. description of the case, 186-192. notice; inaccurate description of statute, 187. notice; unnecessary details, 188. notice; slight inaccuracy in amount, 189. notice; error in description of execution, 190. notice ; several executions, 191. notice; error in description of writ; " execution " instead of " mesne process," 192. name and description of the party upon whose application notice issues, 193-195 description, 193. initial only of Christian name, 194. middle initial omitted, 195. name and description of the party to whom notice issues, 196-201. notice; misnomer, 196. error of name in recognizance and notice; waiver, 197. addressed to attorney; error in description of party, 198. omission of a partner's name, 199. addressed to attorney; United States statute; non-resi- dent creditor, 200. notice ; no address to officer, 201. appointment of place and magistrate, 202-204. description of place for examination, 202. naming magistrate, 203. meeting at another place ; waiver, 204. time for examination ; omission of year, 205. time for examination; evening, 206. INDEX. 435 l)fOTICE — continued. signature of magistrate to show iurisdiction, 207. new notice, 208-217. new notice; seven days; defect in form or service, 208. new notice; proof of former defect, 209. computation of time ; first day excluded, 210. new notice; magistrate's opinion of notice not conclusive, 211. new notice; form; time, 212. new notice; officer's return uncertain, 213. first notice valid; officer's I'eturn on new notice, 214. new notice; debtor's instructions not followed, 215. new notice ; estoppel by false representation, 216. new notice ; waiver of time, 217. error in name, note after 217. notice of new application necessary when, after default before another magistrate, note after 217. erroneous copy, but correct original, 250, 251. without signature by surety to creditor after surrender on a recognizance, 341. of surrender of principal by bail valid, though without date, note after 342. record of magistrate, evidence of, 347. original with officer's return to be produced, when, 349. to debtor, whether affidavit be necessary before the issuing of, 357, 367. a ministerial act; magistrate's certificate conclusive of return, when, note after 367. notice to debtor without previous affidavit, 371 a. to creditor that debtor has applied to take the oath, form of, 395. form of, that defendant desires to take the oath that he does not intend to leave the state, 395. form of, that defendant desires to take the poor debtor's oath, 399. to judgment debtor, time allowed for service, 401. to debtor on application of judgment creditor, 402. form of citation to a judgment debtor, 403. if notice to judgment debtor defective, new notice to be served, 404. examination of debtor may be without notice when, 423. 436 INDEX. NOTICE — continued. to judgment creditor of debtor's desire to take oath, form of, 426. to debtor, none required in case of arrest on charges of fraud, 428. 0. OATHS, Oath of Intention not to leave the State. res adjudicata, 36. practice in regard to, 395-398. Oath for the Relief of Poor Debtors. form of, 39, 44. debtor may be examined for, even if found guilty on charges of fraud, 49. magistrate no jurisdiction to administer oath on credi- tor's default, note after 49. new application for, may be made after expiration of sen- tence on charges of fraud, 52. may be administered even if creditor appeals from deci- sion of magistrate as to charges of fraud, 75. conspiracy to take poor debtor's oath, note after 77. no jurisdiction to administer oath on discharge without examination, note after 77. departure of debtor when oath refused, 102. bail after refusal of, 126. application to jailer for, 170-173. arrest after, 267. unnecessary taking of, does not invalidate a discharge, 322. examination is voluntary; evidence, 332. wrong oath administered, 333. ■ right oath administered; erroneous certificate amended, 334. oath administered within the hour; time waived by credi- tor, 335. oath administered, out of prison, 336. contempt; attachment; commitment; no oath, note after 336. perjury at examination for, note after 336. magistrate has no jurisdiction to administer oath on credi- tor's default, note after 336. INDEX. 437 OATHS — continued. when cannot be proved by register of jailer, note after 355. application for, of defendant about to leave the state, 399. policy of debtor to apply to take it when, 423. form of notice of debtor's desire to take, 426. should not be taken on discharge for non-attendance of creditor, 427. examination for, is without reference to charge of fraud, when, 429. after refusal of, debtor may go free, when, 431. form for refusal of, by magistrate, 431. is refused if debtor is found guilty on a charge of fraud, 434. may be applied for after reversal or expiration of sentence on charge of fraud, 435. when will be administered if debtor found not guilty of charge of fraud, 435. new application for, after serving out sentence, 436. Mowry's Case, meaning and effect of decision, 437. Oath of Witnesses. form of, 398. OFFICEKS. See Bonds; Escape and Rescue; Arrest. need not be present at poor debtor hearing until when, 101, 102. bail bond is to be taken in the name of the sheriff, note after 148. sheriff liable for taking insufficient bail, when, note after 148. not liable for the arrest if it does not appear, and they do not know, that magistrate is creditor's attorney, 160. liability of, when the magistrate taking affidavit is plain- tiff's attorney, note after 169. cannot waive service of notice without special authority, 182. no address to, necessary in a notice, 201. de facto, service of notice by, 219. bond of, constable's error in, 219. service of notice by, outside their precinct, 220. time for travel when service of notice made upon officer, 228. 438 INDEX. OFFICERS — continued. service of notice upon officer who made the arrest, 238- 241. return of constables presumed to mean service in their town, 245. may orally appoint persons to assist them, 265. breaking outer doors in serving civil process, 266. to use reasonable exertions in their discretion, and may call aid to prevent an escape, 275, 276. ■when to search for goods before making an arrest, 278. officer not liable for an illegal arrest, when, note after 285. damages against sherifE for an escape, note after 304. voluntary discharge by, not a bar to action on judgment, note after 304. to follow directions of creditor as to mode of serving writ, 318. statements of, not admissible to prove adjournment, when, 353. in actions against, when may be shown in evidence that debtor had no property, note after 355. duties of sherifE as to serving execution, note after 367. what officers may make aiTests, 382. duty as to accepting bail bond, 386. have no right to keep debtor in their custody, when, 395. committing defendant to jail to deliver to jailer copy of writ, 399. when to arrest on an execution, 419. must take debtor to jail, when, 426. when needed, if debtor is refused the oath, 434, 435. OFFICERS' RETURNS. See Returns of Officers. PARTNERS, one partner may sign charges of fraud, 57. recognizance given by one of several, 71. name of one omitted in notice to, effeet of, 199. service of notice upon one partner not sufficient, when, 230. service of one copy of notide on two attorneys, 234. INDEX. 439 rEKJURY, fajlse swearing of poor debtor, when to be pleaded, 267. ' by debtor at examination, action of tort will not lie for, note after 336. PLAINTIFF. See Defendant. debtor applying to take oath is in the position of, 39, 44. the debtor applying to take the oath as to leaving the state in the position of a plaintiff, 398. debtor applying to take oath is in position of, 431. PLEADING, declaration to allege what as to jurisdiction of magistrate, 118. declaration on recognizance need not aver non-payment of execution, 122. declaration, amendment of, allowed when, 123. declaration containing counts in contract and tort, effect of, on affidavit for arrest, note after 169. plea in abatement; arrest after poor debtor's oath, be- cause " served only by the arrest; " replication; false swearing, 267. plea in abatement; no declaration in the writ, 268. declaration to be inserted in writ when an arrest is made, 268. declaration on recognizance to state what as to the au- thority for the arrest, 277. declaration must be inserted in writ when arrest is made, 379. to charges of fraud, 433. POOR DEBTOR'S OATH. See Oaths. PRACTICE. ARREST ON MESNE PROCESS IN ACTIONS OF CONTRACT. Jurisdiciion. the county, 373. the magistrate, 374. the fee, 375. The Application. mode of application, 376. proof of affidavit, 377. granting certificate; the " sunset clause," 378. arrest after sunset; authority, 378, 379. annexation to writ of affidavit and certificate, 380. rppnvrl • Tnpmnrn.Tidiim as a record, 381. 440 INDEX. PRACTICE — continued. The Arrest. officers, 382. conveying prisoner; taking before magistrate, 383. escape; rescue; posse comitatus, 384. Bail. sureties, 385. accepting bond, 386. approving bond, 387. release on bail, 388. bond by other than a party, 389. no bail after sentence, 390. Recognizance. sureties, 391. choosing a magistrate, 392. before the magistrate, 393. release upon the recognizance, 394. delivery up to magistrate, 395. defendant's notice of desire to take the oath that he does not intend to leave the state; avoiding jail; fixing time and place of examination, 395. serving of notice, 395. non-attendance of magistrate, 396. The Examination after Arrest on Mesne Process. the examination; creditor not attending; discharge, 397. the examination; both parties attending, 398. defendant can do what after being refused oath as to leaving the state, 399. ARREST ON MESNE PROCESS IN ACTIONS OF TORT. arrest on mesne process in tort, 400. affidavit and certificate for arrest in an action of tort, 400. BEFORE AND AFTER ARREST ON EXECUTION. examination of debtor before arrest on execution, 401. jurisdiction of magistrate to examine debtor before arrest on execution, 401. Application. meaning of, 402. affidavit; application of judgment creditor, 402. notice or " citation," form and service of, 403. defective notice and service, 404. INDEX. 441 PRACTICE — continued. power of magistrate to postpone or continue examination, 405. non-attendance of magistrate, 406. continuance by another magistrate, 407. waiver of attendance; continuance or postponement by agreement; written agreements, 408. The Examination before Arrest. attendance of magistrate and parties ; swearing the debtor ; object of written examination, 410. the issue, 411. the examination, 412. written examination, 413. the whole hearing in writing, 414. examination ordered out of magistrate's presence, 415. rule of evidence, 416. relevancy of fraud, 417. non-appearance or disobedience of debtor, 418. arrest of debtor making default, 418. Arrest after Examination. affidavits, proof, certificates, and executions, 419. privileges of judgment debtors before a magistrate, 420. Arrest upon the Charge that the Judgment Debtor intends to leave the State. privileges of debtor in such a case, 421. Policy of a Debtor before Examination and Arrest, and after Arrest. the policy of default at the examination before arrest, 422. the policy of applying to take the poor debtor's oath, 423. classification of the rights of judgment debtors before a magistrate after arrest, 424. preparation for settlement, 425. Commitment, and Application for Oath in Jail. commitment; application, 426. discharge without examination, 427. effect of unnecessary oath ; perjury; jurisdiction, 427. Arrest after Charges of Fraud. affidavits; certificates ; first charge is surplusage, 428. Examination for the Poor Debtor's Oath. examination without regard to any charge, 429. 442 INDEX. PRACTICE — continued. the issue, 430. order of proceeding, 431. assignment to creditor before oath, 431. Trial upon a Charge of Fraud. filing the charge, 432. order of proceeding, 433. guilty; sentence; mittimus, 434. appeal; different rights under appeal; guilty; not guilty; property; no property, 43S. serving out sentence, and new application for oath, 436, Mowry's Case, meaning and effect of, 437. rules for hearings and examinations, 438. PRINCIPAL AND SURETY. See Bonds; Escape and Rescue; Recognizancbs. bail discharged, though creditor appeals from decision on charges of fraud, 75. death of one of two sureties, note after 123. bond reciting " sureties," but signed by one surety, good when, note after 148. death of principal, note after 148. wife of principal as one surety on a bail bond, note after 148. action of debt on judgment after surrender of principal, note after 326. commitment of principal after breach; action against sureties, note after 326. imprisonment of principal on criminal sentence will dis- charge bail, when, note after 326. sureties discharged by commitment of principal, note after 326. surrender not prevented by collateral agreement not to arrest; liability of bail, 338. constructive surrender and new recognizance, 339. surrender within thirty days, 340. notice of surrender notxsubscribed, 341. surrender to jailer ; bastardy act, 342. notice of surrender by bail valid, though date omitted, note after 342. scire facias; surrender; alias execution after a year from former execution, note after 342. INDEX. 443 PRINCIPAL AND SUB.'ETY — continued. surrender by attorney, note after 342. surrender; discharge of bail; principal in state's prison, note after 342. surrender instead of payment before judgment on fcire facias, note after 342. upon recognizance, time allowed to procure, 391. on recognizance, question put to, by magistrate, 393. PRISONER. See Support. PRISON LIMITS. See Escape and Rescue; Jail. PROHIBITION, WRIT OF, after refusal of oath as to leaving state, 36. PROPERTY, FRAUD, RES ADJUDICATA, AND THE ISSUES UNDER PUBLIC STATUTES, C. 162, §§ 21; 24, AND 39. after certificate for arrest refused, examination of debtor arrested on charges of fraud may extend to what, 38. invalid objection to examining debtor as to his property when he applies to take oath, he having been once examined as to same, 39. Frost's Case, doctrine of, 39. if creditor appears, attends, and pays, magistrate must examine debtor as to his property before allowing oath to be taken, 39. burden of proof is on debtor applying to take oath, 39. poor debtor's oath, form of, 39. issue when debtor applies for oath, 39. certificate when oath has been administered, foi-m of, 39. debtor applying for oath takes the initiative, and is in the position of a plaintiff, 39. second invalid objection to examining debtor as to his property when he applies to take oath, 40. issue upon examination instituted by creditor, how differ- ent from issue upon examination to take the oath insti- tuted by debtor, 40. burden of proof is upon creditor on an examination of debtor before arrest, 40. question as to debtor's property, when res adjudicata, 40. res adjudicata, another test of, 41. 444 INDEX. PROPERTY, FRAUD, kc. — continued. fraud as such not apart of issue in examination of debtor before arrest, 41. under issue of debtor in examination before arrest, deci- sion by magistrate as to fraud extra-judicial, 41. question of fraud not res adjudicata on application of debtor to take the oath, 41. principle of Frost's Case applies to all the charges of fraud, 42. a debtor examined before arrest, and exempted from arrest thereunder for three years, not thereby entitled to oath and discharge as poor debtor, 43. charges of fraud in nature of suit at law brought by creditor, and also like declaration in set-ofE; creditor may avail himself of them or not, 44. debtor applying for oath must be examined as to his property, in spite of fact that charges of fraud are filed, if creditor so elects, 44. there need be no trial of charges of fraud made simply to secure arrest, if creditor so elects, 45. gist of chapter stated, note after 45. issues on application for poor debtor's oath, 437. R. RECOGOTZANCES. See Principal and Surety. condition to appear in " court," 5. when may be taken by special justice, 11. examination and discharge of debtor by single justice of peace, 13. notice issued by magistrate having no jurisdiction, 15. departure from hearing with consent of magistrate not a breach, 21. no breach by departing after refusal of oath, 30. debtor giving, need not apply to same magistrate to take the oath, 37. by one of several partners, 71. nature of. Introduction before 78. jurisdiction before second magistrate after notice to credi- tor, 78. ' INDEX. 445 RECOGNIZANCES — continued^ form; recitals, 79-89. form ; recital of iurisdiction, 79. amount; less than double, 80. less than statutory amount, 81. amount; more than double, 82. naming magistrate, 83. form specifying examination and magistrate, 84. omission of time for examination, 85. omission of place for examination, 86. condition referring to notice inaccurately, 87. form; recitals, 88. form; condition, 89. compliance and breach, 90-105. agreement to pay; condition absolute; debtor must ap- pear, 90. delivery up within thirty days, 91. attendance of "magistrate, 92. debtor to procure magistrate's attendance, 93. obligee's duty as to delivering himself up, 94. appearance to object to examination, 95. attendance on Sunday; adjournment, 96. default within thirty days not necessarily a breach, 97. default, but compliance within thirty days, 98. departure; parol proof of breach ; evidence, 99. waiting for certificate of refusal; breach, 100. presence of oflScer and execution, 101. oath refused ; no certificate issued ; no officer present ; no breach, 102. ofier to surrender to officer in default of finding magis- trate, 103. oath and discharge without pleading to charges of fraud, 104. when breach begins ; discharge in insolvency within the time limited, 105. discharges, 106-112. satisfaction of judgment by one of joint judgment debtors ; appearance; default; jurisdiction; evidence, 106. discharge by injunction, 107. imprisonment causing breach, 108. surety on recognizance discharged by payment by surety on bond, 109. 446 INDEX. RECOGNIZANCES — continued. discharge by agreement, 110. conditional extension of time no discharge of surety, 111. waiver of condition by creditor, 112. evidence, 113-119. taken orally ; memorandum evidence of, 113. evidence; recital of facts not in presence of magistrate, 114. extended record or memorandum not to be controlled or impeached by parol evidence, 115. evidence; proof of breach, 116. arrest and recognizance void for omission of capias in writ; evidence; inspection of writ, 117. pleading; declaration; recital of magistrate's jurisdiction; evidence, 118. magistrate's refusal to order examination; evidence, 119. memorandum or record not returnable, 120. record or memorandum; not returnable; kept by magis- trate, 121. pleading; declaration; averment of non-payment, 122. amendment of memorandum, aiid declaration, 123. -amendment; record, note after 123. breach of; scire facias brought by mistake instead of action of contract, note after 123. condition to abide; proper penal sum, note after 123. death of one of two sureties; extension of time for filing motion to dismiss, note after 123. does not waive illegality of arrest even if oath is taken, note after 123. execution valid; obvious error in date, note after 123. for more than double amount of execution, valid when, note after 123. liability of magistrate for error in taking, note after 123. magistrate's non-appearance within hour; breach; juris- diction, note after 123. no action for breach of, after original judgment reversed on review, note after 123. payment by principal ; suit pending against surety, note after 123. void when arrest made with a defective certificate, 156. properly contains condition as to giving notice to creditor, 179. INDEX. 447 RECOGNIZANCES — continued. notice to creditor necessary, though not expressed in con- dition, 180. agreement that hearing may be postponed until after time limited, effect of, 181. for ninety days instead of thirty void, when, note after 304. release from arrest under, does not satisfy judgment, 323. burden of proof on plaintiff to prove breach of, 344. waiver of, by release of debtor, 352. practice in regard to, 391-396. form for a brief certificate of, 394. form for extended memorandum of recognizance, 394, by party about to leave the state desiring to take oath, 399. debtor cannot give, when, 431. in case of appeal, 435. certificate of failure to give additional forms, 438. RECORDS. See Evidence. of magistrate, not to be impeached by parol evidence, 115. magistrate's record of recognizance need not be returned into any court, 120, 121. fact of bail a matter of record, 125. of magistrate, evidence of notice, 347. amendment of, by magistrate, 348. minutes in magistrate's book not evidence, when, note after 355. jailer's register not admissible as evidence, when, note after 355. kept by magistrates, 381. RES ADJUDICATA. See Property, Fkaud, etc. refusal of oath as to leaving state, 36. tests of what is, 40-42. debtor may desire decision on question of property even if found guilty on charges of fraud, 49. question of defendant's leaving the state is, when, 396. intention to leave state is res adjudicaia after hearing and decision by magistrate, 398. RESCUE. See Escape and Rescue. 448 INDEX. RETURNS OF OFFICERS, certificate of magistrate conclusive evidence as to regu- larity, when, 166. should contain what, to justify commitment, 169. service of notice, proof of, 183, 184. uncertain as to sufficiency of time for travel in service of notice, 213. on new notice, when the old notice was valid, 214. uncertain in statement of time allowed for travel, bad in absence of other evidence, 223. service of one copy on two attorneys, 234. of service of notice, conclusive evidence of what facts, 241. no search stated ; aiTest, 243. conclusive evidence of facts returned, 244. of constable; presumption of service within his town, 243. of service on several parties ; conclusive as to abode, 246. uncertain as to abode ; contradiction of, 247. uncertain as to time, 248. return uncertain; evidence to show distance, 249. conclusive notwithstanding erroneous copy, 2S0. conclusive; uncertain copy served, 251. of rescue ; prima facie evidence only, 252. of collector of taxes, prima facie evidence, 253. amendment to show place of service, 254. amendment concerning commitment, 255. amendment not to show return false after discharge, 256. conclusive of service at last and usual place of abode, when, note after 256. trespass for want of return, note after 256. when invalid if commitment without a certificate, note after 256. record of magistrate, evidence of, 347. conclusive proof of arrest when, 350. form of, on notice to plaintiff of desire to take the oath, 395. on citation to judgment debtor, 403. form of, on notice of debtor's desire to take oath, 426. on a mittimus, 434. RULES, for hearings and examinations, 438. INDEX. 449 s. SERVICE OF NOTICE. See Notice. by officers de facto; error in constable's bond; term re- cently expired, 219. by officer outside of his precinct, 220. reading notice insufficient, 221. waiver of, by ci-editor's attorney, 222. waiver of time for travel proved by parol ; officer's return ; evidence, 223. return uncertain about time, 223. time measured by hours ; Sunday excluded and included, 224. time allowed; fraction of mile and hour, 225. twenty-four hours in addition to time for travel, 226. time for travel from place of personal service, 227. time for travel when service on officer, 228. on officer at last and usual abode; time allowed, 228. who is judgment creditor on execution for benefit of a third party, 229. upon one partner, 230. on attorney in same county with plaintiff, 231. upon attorney outside of county, 232. upon attorney of record of foreign corporation, 233. one copy on two attorneys, 234. upon attorney without the county, 235. on the person who made the writ, 236. who is an agent, 237. on officer who made arrest, 238. creditor not resident in county; service on creditor; ser- vice on officer, 239. on officer who made arrest; temporary presence of at- torney, 240. creditor not resident; officer's return; service on officer; evidence of I'esidence, 241. effect of the words " at the rate of " added in P. S. c. 162, § 18, note after 241. meaning of words "one day additional" in St. 1877, ^^ c. 250, § 1, note after 241. 450 INDEX. SERVICE OF NOTICE — continued. mode of computing time; exclusion of Sunday, note after 241. waiver of, by attorney through a messenger, note after 241. on several parties, return of, 246. of discontinuance may be by a constable, when, 272. that it was on proper person may be shown by parol, 351. on creditor of desire of debtor to take the oath, 393. SHERIFFS. See OFriCERS. SIGNATURE. See Notice. SPECIAL JUSTICE. See Magistrates. SUNDAY. See Holidays. SUPERIOR COURT. See Courts. SUPPORT, demand by prisoner for; and demand by jailer of security for, 303. origin of cases upon, 305. claim presented to jailer instead of overseers, 306. demand not technical, 307. discharge; demand upon creditor and baU, 308. liability of town; situation of jail; settlement, 309. liability of town; beds and bedding, 310. creditor's liability; demand; request; discharge, 311. duration of mesne process; commitment by bail; creditor not liable, 312. collector not liable for support of prisoner committed for non-payment of taxes, note after 312. liability of town of settlement and of Commonwealth, note after 312. liability of town where jail is situated to jailer, note after 312. towns not liable for support of criminals, when, note after 312. SURETY. See Principal and Surety. SURRENDER OF PRINCIPAL BY SURETY. See Prin- cipal AND Surety. STATUTES. chronological list of statutes of Massachusetts, Appendix, pp. 317-345. INDEX, 451 STATUTES — continued. the present statute, P. S. c. 162, Appendix, pp. 348-382. table of statutes of other states, the territories, and the United States, Appendix, pp. 383-393. TAXES, arrest of person for non-payment of, 2S3. collector of, his certificate concei'ning arrest not conclu- sive evidence, 253. collector of, arrest after property offered, 274. arrest for non-payment of, note after 285. collector not liable for support of prisoner committed for non-payment of, note after 312. TORT. See ExEctrTioNs; Mesne Process. action of, lies for arrest vrithout affidavit, when, note after 169. defective affidavit for arrest on mesne process, 153. distinction between arrest in tort and in contract, 164. arrest in actions of, 400. TOWNS AND CITIES. when to support debtor in jail, 309, 310, note after 312. TRIAL JUSTICE. See Magistrates. U. UNITED STATES, LAWS OF THE; COURTS OF THE. See Bankruptcy and Insolvency; Courts. W. WAIVER, none of false imprisonment by giving recognizance, sub- mitting to examination, and taking oath, 16. of attendance at time and place fixed for hearing, 18. promise to pay the debt not a waiver of a default by creditor, 51. 452 INDEX. I WAIVER — continued. by delay in making objection to recognizance, 71. of performance of condition of recognizance, 112. giving recognizance does not waive illegality of arrest, when, note after 123. of condition of jail bond, none by consenting to adjourn- ments of examination, 144. of notice required by recognizance, what is not, 181. officer cannot waive service of notice without special authority, 182. of error in name in a notice, 197. meeting held at place different from that mentioned in notice, 204. by appearing without objection when new notice issued within seven days, 217. of service of notice, what amounts to, 222. of time allowed for travel, 223. by attorney of service of notice, note after 241. of privilege from arrest by party attending court, 263. creditor may waive his right to full hour, 335. release of debtor and agreement that he need not appear may be, 352. of service of notice by attorney through a messenger, note after 355. of notice by agreement of parties, 395. of attendance when examination of debtor postponed, 408. WARRANT, of Superior Court to bring debtor into court, form of, 435. WITNESSES. See Oaths. debtor and wife as, 65. arrest of, not allowed, when, notes after 285, 355. WOMEN, female judgment debtor, unmarried or married, present jui'isdiction of court of insolvency an exception to the development of the poor debtor law under individual magistrates, note to 1. female judgment debtor, married, imprisonment for debt under old law, 285. arrest of, on execution for costs, effect of Public Statutes, note after 285. INDEX. 453 WOMEN" — continued. female judgment debtor, imprisonment and poor debtor's oath under old law, note after 326. female judgment debtor excepted from classification of rights of judgment debtors before individual magis- trate, if provided for by statutes giving court of insol- vency jurisdiction, 424. WKIT AND PKOCESS. See Affidavits and Certifi- cates ; Applications ; Arrest ; Attachmf.nt ; Forms; Fraud; Mesne Process; Notice; Offi- cers; Practice; Returns of Officers; Service OF Notice; and the titles of the several kinds of writs. amendment of, does not discharge bail, when, note after 148. alteration of, 150. error in description of, in notice, 192. erasure of capias, 354. form of, 379. must contain a declaration when arrest is made, 379. declaration in writ for arrest, 268. Mixed Civil and Criminal Process. See Fraud. University Press : John Wilson & Son, Cambridge.