Haskell v. Cunningham
| Decision Date | 20 May 1915 |
| Citation | 108 N.E. 915,221 Mass. 49 |
| Parties | HASKELL v. CUNNINGHAM et al. LOGAN et al. v. SAME. CHARLES A. ADAMS, Inc. v. WEISS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. W Mowatt, of Boston, for plaintiffs Logan and others and Chas A. Adams, Inc. Schwarz & Dearborn, of Boston, for plaintiff Haskell.
Edward McAnally and Charles A. Clifford, both of Lawrence, for defendants.
These three cases were heard together by a justice of the superior court without a jury.
The debtors were arrested under R. L. c. 168, upon certificates and executions issuing from courts in Essex county other than the police court of Lawrence, before which court each of the debtors was taken and there entered into a recognizance under R. L. c. 168, § 30, and later made application to said court to take the oath for the relief of poor debtors.
The record of the poor debtor proceedings in the police court of Lawrence was in evidence and showed the record being the same in each of the three cases, with the exception of the names of the parties. Even if there was error in demanding the fee of three dollars from the creditor, and upon his refusal to pay discharging the debtor, there was no default in the recognizance. The debtor contracted to appear before the court and abide its final order. That he has done. 'It is immaterial whether or not the order proceeded from an erroneous view of the law on the part of the magistrate.' Mann v. Cook, 195 Mass. 440, 81 N.E. 286. But the order of the judge in requiring the creditor to pay the fee established by law before examining the debtor, was in accordance with the statute. The obligation to pay the fee of three dollars was upon the creditor plaintiff and not upon the debtor, and the creditor refusing to pay the same, the debtor was properly discharged. R. L. c. 168, § 74, provides upon the commencement of any proceedings relative to male debtors in police, district or municipal courts, an entry fee of three dollars shall be paid, to be in payment for hearing applications for examination, continuances and the issuing of all notices and certificates required in such proceedings. When the proceedings are not before a police, district or municipal court, but are before some other magistrate authorized to act, his fees are governed by R. L. c. 168, § 75. Prior to 1891 the fees were the same in poor debtor cases whether the proceedings were before police, district and municipal courts or before other tribunals, and the plaintiff or creditor causing the arrest was obliged to pay all of these fees in advance. Pub. St. c. 162, § 68. In 1891 the law was changed in so far as it related to police, district and municipal courts and it was changed by doing away with the separate items as fees in these courts and directing that in such courts one fee of three dollars should be paid. Acts of 1891, c. 313, now R. L. c. 168, § 74. The Legislature in making this change in the amount of the fee which was to be paid, did not intent to relieve the creditor of the duty of payment and this obligation remained where it was prior to the statute of 1891, that is to say, upon the creditor, and not upon the debtor, the only change effected by the statute of 1891 being a change in the amount of the fee to be paid, and making no change in the party upon whom rested the obligation of payment.
This is further shown by the concluding paragraph of R. L. c. 168, § 75, 'If the oath is not administered, such fee shall be allowed as part of the service of the writ or execution,' plainly showing that the fees for the examination were not to be paid by the debtor, and in R. L. c. 168, § 42, if...
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