Anderson v. Edwards , 123 Mass. 273 ( 1877 )

Morton, J.

Proceedings under the Gen. Sts. c. 124, for the relief of poor debtors arrested on mesne process or execution, are essentially in their nature civil proceedings. They are instituted by the debtor to obtain his discharge from imprisonment for debt; they are cognizable only by courts of civil jurisdiction; Parker v. Page, 4 Gray, 533; and, like other civil actions, they are at all stages of the proceedings under the control of the parties thereto. It is true that, as one of the incidents of the proceedings, the creditor may file charges of fraud, which, if proved, may at the discretion of the magistrate or court subject the debtor to imprisonment, but, as is said in Parker v. Page, ubi supra, such charges are not “ an independent, distinct substantive process against a debtor. They are only incidental to the previous proceeding commenced by him to obtain his release from confinement on civil process. The statute therefore gives to them the characteristics of a civil proceeding.” It provides that “ the charges shall be considered in the nature of a suit at law,” that either party may appeal from the judgment of the magistrate to the Superior Court, “in like manner as from the judgment of a justice of the peace in civil actions; ” and that by consent of parties the court may hear and determine the charges without a jury. Gen. Sts. c. 124, §§ 31-34.

The liability of the debtor to be imprisoned is not indeed one of the ordinary incidents of a civil action j and t has been held that a charge of fraud partakes so far of the nature of an accusation of a crime that it must be fully and plainly, substantially and formally described, under the twelfth article of the Declaration of Eights, though the technical strictness required in indictments and complaints may not be necessary. Chamberlain v. Hoogs, 1 Gray, 172. Stockwell v. Silloway, 100 Mass. 287. But in most particulars the proceedings are in the nature of a civil action between the creditor and debtor.

The principal object of them is to determine whether the debtor is entitled to be released from imprisonment for debt at the suit of the creditor. But for the provision authorizing the imprisonment of the debtor if convicted upon charges of fraud, it is entirely clear that the same rules of evidence would apply as in any civil action. We are of opinion that it is not the purpose or effect of this provision to change the rules of evidence and to put upon the creditor the burden of a greater stringency of proof. It follows, therefore, that the Superior Court correctly held that the rule of evidence, applied in strictly criminal cases, that the allegations must be proved beyond reasonable doubt, was not applicable in this case. See Richardson v. Burleigh, 3 Allen, 479.

For the same reasons the ruling of the court, that it was com petent for the creditors to call as witnesses the debtor and his wife, under the St. of 1870, c. 393, was correct.

The books of the Hampshire Savings Bank, supported by the oaths of the treasurer and clerk who made the entries therein^ were properly admitted in evidence. Adams v. Coulliard, 102 Mass. 167. Briggs v. Rafferty, 14 Gray, 525. McKavlin v. Bresslin, 8 Gray, 177.

The exception to the admission of the deed of mortgage from the debtor’s wife to Curtis is without foundation. The fraud-alleged was that the debtor had bought a house and lot of Graves- and had caused it to be conveyed to his wife for the purpose- of defrauding his creditors. A part of the consideration paid’ Graves was procured by means of the mortgage to Curtis, which-was given to secure the debtor’s sole note, afterwards, as it-was: claimed, paid by him. The debtor joined in the mortgage. It was not, therefore, as argued by the debtor, res inter alios, but was a part of the transaction alleged to be fraudulent and was clearly admissible in evidence. Exceptions overruled.