Lamagdelaine v. Tremblay

• Decision Date: 27 November 1894
• Citation: 162 Mass. 339,39 N.E. 38
• Parties: LAMAGDELAINE v. TREMBLAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 339

39 N.E. 38

LAMAGDELAINE v. TREMBLAY.

Supreme Judicial Court of Massachusetts, Hampden.

November 27, 1894

COUNSEL

W.H. Brooks, for plaintiff.

M.F Druce, for defendant.

OPINION

BARKER J.

1. The defendant's motion in arrest of judgment was rightly overruled, because it was for causes existing before the verdict, and which did not affect the jurisdiction of the court. Chamberlain v. Hoogs, 1 Gray, 172, relied upon by the defendant to show that Pub.St. c. 167, § 82, does not apply to actions like the present, was decided in the year 1854; but by Supp.Gen.St.1864, c. 250, § 3, the provisions of which are continued in force by Pub.St. c. 214 § 27, the same restriction was extended to motions in arrest of judgments rendered in prosecutions for crime. Whether charges of fraud in actions like the present are sufficiently formal and precise cannot now be brought to this court by a motion in arrest of judgment.

2. The defendant takes nothing by his appeal from the order overruling his motion to dismiss the action. That motion was filed at the October sitting in the year 1893, and related to the charges as they then stood; but amended charges and specifications properly sworn to, and the sufficiency of which was not questioned by his motion to dismiss the action were made in the following May, and the trial at which he was convicted and sentenced was upon the amended charges and specifications. The motion to dismiss the action because of defects in the original charges was therefore rightly overruled, and the question of the sufficiency of the amended charges and specifications is not strictly brought before us by the appeal.

3. But, besides this, the motion to dismiss must in any event have been overruled, because the fourth charge--that the debtor contracted the debt with an intention not to pay the same--was well pleaded, and, that being so, the action could not be dismissed upon the motion.

4. The first exception stated in the bill is to the ruling that the magistrate before whom the charges of fraud on which the debtor was tried in the police court were sworn to was not precluded from acting as a magistrate. It appeared that he was a person in the employment of the attorney of record of the creditor; but the administration of the oath was a purely ministerial function, involving no judicial action, and the interest of the magistrate did not disqualify him.

5. The second,...