Noyes v. Manning , 159 Mass. 446 ( 1893 )

Allen, J.

We are all of opinion that the Superior Court rightly refused to give the ruling which was asked. A majority of the court is of opinion that, under Pub. Sts. c. 162, §§ 89, 52, the judge of the Municipal Court had no authority to administer the oath concurrently with his finding the debtor guilty upon the charge of fraud, and that his act of administering the oath under such circumstances was a mere nullity; -the case being distinguishable from Lockhead v. Jones, 137 Mass. 25, where the oath was not administered until an appeal had been taken from the conviction upon the charge of fraud, and a new application had been made by the debtor after the entry of the appeal. A minority of the court think, that under the decision of Lockhead v. Jones the oath was lawfully administered, but that it nevertheless did not have the effect to discharge the debtor upon the charge of fraud. In either view, the debtor was properly convicted upon the charge of fraud.

It was within the discretionary power of the Superior Court to remove the nonsuit. Both in civil and criminal cases an order of court may be revised at the same term or sitting of the court. Commonwealth v. Weymouth, 2 Allen, 144. Lowe v. Brigham, 3 Allen, 429, 430. Keith v. McCaffrey, 145 Mass. 18. The charge of fraud was in the nature of a suit at law; the defendant’s recognizance bound him to abide the final judgment; and there is no statute which entitled him to an absolute discharge on the mere entry of a nonsuit. Pub. Sts. c. 162, §§ 49-52. Everett v. Henderson, 150 Mass. 411, 418. No judgment had been entered upon the nonsuit. Exceptions overruled.