Morse v. Dayton

125 Mass. 47, 1878 Mass. LEXIS 11

• Court: Massachusetts Supreme Judicial Court
• Decided: July 18, 1878
• Status: Published

Opinion

Gray, C. J.

The proceedings upon the application of a debtor to be admitted to take the poor debtor’s oath, and upon charges of fraud filed by the creditor by way of answer to such an application, are in their origin and trial, and as regards the jurisdiction of courts, in the nature of a civil action. Parker v. Page, 4 Gray, 533. Stockwell v. Silloway, 100 Mass. 287. Anderson v. Edwards, 123 Mass. 273. Questions of law arising at the trial in the Superior Court might therefore be reported after verdict for the determination of this court. Gen. Sts. c. 115, § 8.

From the judgment of a magistrate on such charges of fraud, “ either party may appeal to the Superior Court, in like manner as from the judgment of a justice of the peace in civil actions. Gen. Sts. c. 124, § 32. In the case of an appeal from the judgment of a justice of the peace in a civil action, “the case shall be entered, tried and determined, in the court appealed to, in like manner as if it had been originally commenced there.” c. 120, § 25. The appeal vacated the whole judgment of the magistrate, as well that part which was in favor of the appellant, as that part which was against him, and opened the case for trial in the Superior Court upon all the charges of fraud.

The provision of the bankrupt act of the United States, that a creditor proving his debt in bankruptcy shall not be allowed to maintain any suit against the bankrupt, but shall be deemed to have waived all right of action against him, and to have discharged and surrendered all proceedings already commenced, and unsatisfied judgments already obtained, does not prevent the creditor from bringing a new suit and making a new arrest on the same debt, in case a certificate of discharge in bankruptcy is refused. U. S. Rev. Sts. § 5105. U. S. St. June 22, 1874, § 7. Valpey v. Rea, 124 Mass. 99.

But a debtor discharged from arrest or execution, under the statutes of the Commonwealth, on his application to take the poor debtor’s oath, will be exempt from arrest upon any subsequent execution or process on the same judgment or for the same cause of action. Gen. Sts. c. 124, § 22. 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 obtained thereon, and cannot therefore be defeated by the mere proof in bankruptcy of the creditor’s claim. Stockwell v. Silloway, 100 Mass. 287, and 105 Mass. 517.

It follows that the rulings of the learned judge of the Superior Court were erroneous upon both the questions reserved by him for our decision. New trial ordered.