Horton v. Weiner
| Decision Date | 28 February 1878 |
| Citation | 124 Mass. 92 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Edwin J. Horton & others v. Herman Weiner |
Exceptions overruled.
J Brown, for the defendant.
T. M Stetson & S. M. Thomas, for the plaintiffs.
The defendant was arrested upon mesne process, and thereupon made application to take the oath for the relief of poor debtors under the Gen. Sts. c. 124. The creditors filed charges of fraud. Upon a hearing, the magistrate adjudged the debtor to be guilty of the charges, and he appealed to the Superior Court. That court sustained the defendant's objection to the sufficiency of one of the charges filed before the magistrate, and he was tried only upon the charge that he contracted the debts due the plaintiffs with an intention not to pay the same. Gen. Sts. c. 124, § 5, cl. 5.
The defendant moved to dismiss the proceedings, upon the ground that the statute does not allow charges of fraud to be filed when a defendant, who applies to take the oath, is arrested on mesne process. The court rightly overruled this motion. The right to file charges of fraud is conferred by the Gen. Sts. c. 124, § 31, which provides in substance that the "plaintiff or creditor," at any time pending the examination of the "defendant or debtor" who has given notice of his desire to take the oath for the relief of poor debtors, may file such charges in writing, under oath, to which the defendant or debtor may plead that he is guilty or not guilty, and the magistrate may thereupon hear and determine the same. It is clear that these provisions were intended to include defendants who are arrested on mesne process as well as judgment debtors arrested on execution. They are reenactments of the provisions of the St. of 1857, c. 141. That statute provided in direct terms, in regard to defendants arrested on mesne process, that "if the defendant desires to take the oath for the relief of poor debtors, the same proceedings shall be had, and the same charges of fraud may be filed as is herein provided in cases of arrest on execution." § 18.
It is plain, from the Commissioners' Report, that it was not the purpose of the General Statutes to make any change of this provision. The express provision of the St. of 1857 was omitted, because it was unnecessary, as the language of § 31, by necessary construction, includes cases of defendants arrested on mesne process. Throughout this chapter of the General Statutes, in those sections which are intended to apply solely to arrests on execution, the parties are described as the creditor and the debtor; in those which apply solely to arrests on mesne process, the parties are described as plaintiff and defendant; while in those which apply to both, the language uniformly used is the plaintiff or creditor and the defendant or debtor. The use of the same language in § 31 shows beyond a doubt that it was intended to apply both to cases of arrest on mesne process and on execution.
Several exceptions were taken in the course of the trial which remain to be considered.
The plaintiffs were allowed to put in evidence of several purchases of goods made by the defendant of other parties not far from the time he purchased of the plaintiffs, to which the defendant excepted. It does not...
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...that means a civil action at law. Everett v. Henderson, 150 Mass. 411 , 418. The burden of proof which is on the plaintiff (Horton v. Weiner, 124 Mass. 92 , 94) satisfied by proof by a preponderance of the evidence. Anderson v. Edwards, 123 Mass. 273 , 277. See also Roberge v. Burnham, 124 ......
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