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Opinion of the Court.

STEVENS v. FULLER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

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On a body execution issued against a debtor on a judgment in the Circuit Court of the United States for the District of Massachusetts, his arrest was authorized on the ground that he had property not exempt which he did not intend to apply to pay the judgment claim. Notice having been given to the creditor that the debtor desired to take the oath for the relief of poor debtors, his examination was begun before a United States commissioner. Pending this, charges of fraud were filed against him, in having fraudulently disposed of property, with a design to secure the same to his own use and to defraud his creditors. His examination as a poor debtor was suspended, and a hearing was had on the charges of fraud. After the testimony thereon was closed, the commissioner refused to resume the poor debtor examination, and then sustained the charges of fraud and sentenced the debtor to be imprisoned for six months. His examination as a poor debtor was not read to him and corrected, and he did not sign or swear to it, and the commissioner refused to administer to him the oath for the relief of poor debtors. He was then taken into custody under the execution and lodged in jail. On a hearing on a writ of habeas corpus the Circuit Court discharged such writ and remanded him to the custody of the marshal. On an appeal to this court; Held, that the order must be affirmed.

As the commissioner had jurisdiction of the subject matter and of the person of the debtor, any errors or irregularities in the proceedings could not be reviewed by the Circuit Court on habeas corpus, or by this court, on the appeal.

HABEAS CORPUS. The case is stated in the opinion.

Mr. William E. Jewell for the petitioner, appellant.

Mr. Edward W. Hutchins and Mr. Henry Wheeler for the opposing judgment creditor, appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an appeal by William J. Stevens from an order of the Circuit Court of the United States for the District of

Opinion of the Court.

Massachusetts, refusing to discharge him from custody on a writ of habeas corpus. The following are the material facts: William G. Fuller having recovered a judgment against Stevens, in the Circuit Court of the United States for the District of Massachusetts, for $18,000, an execution was issued thereon to the marshal, which commanded him, if he could find no property belonging to Stevens, to take his body and commit him to jail. Accompanying that execution was an affidavit made by Fuller, that the judgment in question amounted to $20, exclusive of costs, and that $20 remained uncollected, and that he believed, and had good reason to believe, that Stevens had property not exempt from execution, which he did not intend to apply to the payment of the judg ment claim, and that he intended to leave the State and District of Massachusetts. Thereupon, a commissioner of the Circuit Court certified that, after due hearing, he was satisfied that there was reasonable cause to believe that the charge made in the affidavit was true, and that, satisfactory cause having been shown, he thereby authorized the arrest of Stevens, if his arrest was authorized by law, to be made after sunset. Stevens was arrested and brought before Henry L. Hallett, a United States commissioner for the District of Massachusetts, who interrogated him, and he declared that he did not desire to take any oath, or to recognize, or to give bail for his appearance at any time, and he failed to recognize or give bail. Thereafter, the commissioner gave notice to Fuller that Stevens desired to take the oath for the relief of poor debtors, at a time specified and appointed, at the office of the commissioner. Stevens then gave a recognizance for his appearance, at such time and place, to be examined. He duly appeared and submitted to be examined, protesting that the commissioner was not authorized by law to order him to be examined touching his property, and stating that he did not waive any informalities in his arrest or in any of the other proceedings. His examination was begun and continued for some time. In the course of it, he offered evidence from the court of insolvency for the county of Suffolk, in the district, that proceedings in insolvency had been begun by him and were then pending. There

Opinion of the Court.

upon, Fuller filed with the commissioner charges of fraud against Stevens, alleging that Stevens, since he had contracted the debt for which the judgment was rendered, had fraudulently conveyed, concealed or otherwise disposed of some part of his estate, with a design to secure the same to his own use and to defraud his creditors, and specifying the particulars of seven different conveyances of land, and a mortgage of land, and three payments of money, by him with such design. The examination of Stevens as a poor debtor was suspended by the commissioner, and a hearing was had before him on such charges of fraud.1 Stevens put in a plea of want of jurisdic

1 These proceedings were had pursuant to provisions in Pub. Stats. Mass. c. 162, set forth as follows in appellee's brief.

"SECT. 17. Except as provided in sections five to sixteen 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 fradulently conveyed, 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 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 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

Opinion of the Court.

tion as to such charges, on the ground that all the transfers of property but one were made by him in the State of New

for money collected by the debtor for the creditor, and that said attorney unreasonably 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 authorizing his arrest shall be made in that county: otherwise it may be made in any county."

"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."

"SECT. 27. When arrested on mesne process the defendant 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 arrested 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, commissioner of insolvency or, except in the county of Suffolk, a trial justice."

"SECT. 31. If the defendant or debtor, when taken before 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 notice thereof to the plaintiff or creditor, signed by him and designating his official capacity, substantially in the following form;

"To A-B—: C— D, arrested on mesne process [or execution] in your favor, desires to take the oath for the relief 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."

"SECT. 33. When a defendant or debtor has given notice 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 former notice, unless the former notice was insufficient in form or service. But if the oath for the relief of poor debtors has been refused, no application to take the same shall be made by the defendant or debtor until the expiration of seven days from the hour of such refusal." (As amended by the Act of 1888, c. 419, § 8.)

Opinion of the Court.

Hampshire, and while he was an inhabitant thereof, and not within the jurisdiction of Massachusetts or of any court or

"SECT. 36. Pending the examination and at any time after the defendant or debtor is carried before a magistrate, 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."

"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 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 and shall hear any legal and pertinent evidence that may be introduced by either party. The plaintiff or creditor may upon such examination propose to the defendant or debtor any interrogatories 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.

"SECT. 39. The magistrate, if satisfied 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 following section, and if it appears to him that the defendant or debtor is entitled to his discharge under the provisions of this chapter, shall administer to him the following

"Oath for the Relief of Poor Debtors.

"I [here 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 excepting 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."

"SECT. 40. After administering the oath the magistrate shall make a certificate thereof under his hand, as follows, to wit:

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

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