Leonard v. Bolton

C. Allen, J. Under the statutes relating to the maintenance of bastard children, “ Whoever has been imprisoned ninety days for having failed to comply with an order of the court, as provided in this chapter, shall have the benefit of the laws for the relief of poor prisoners committed on execution,” upon giving certain notices. Pub. Sts. c. 85, § 20. This section places such a person, in this respect, in the position of a poor debtor; he is entitled to avail himself of the provisions in behalf of poor debtors. That is to say, he may apply to take the poor debtor’s oath. Mo further provisions being made in chapter 85 as to the terms and conditions upon which he may take this oath, it must be considered that he is to do so upon the same terms and conditions as a poor prisoner committed on execution may do it. But when a poor prisoner committed on .execution makes application to take the poof debtor’s oath, he is liable, as an incident of the proceeding, to be met by certain charges of fraud, which if established by proof will defeat his application, and also subject him to a further sentence. Pub. Sts. c. 162, § 52. Among these charges is the following: “ That, since the debt was contracted or the cause of action accrued, the debtor has fraudulently conveyed, concealed, or otherwise disposed of some part of his estate, witli a design to secure the same to his own use or defraud his creditors.” Pub. Sts. c. 162, § 17, cl. 2, and •§ 49. The poor debtor’s oath, and the magistrate’s certificate after administering it, both negative the existence of the facts stated in the above charge. §§ 39, 40. These charges of fraud are incidental to the application of the debtor to obtain his discharge; and it has sometimes been said that they are filed by way of answer or plea in bar to the application. They cannot be filed as a distinct and independent process. Everett v. Henderson, 150 Mass. 411. It has heretofore been determined that, if a husband who has been arrested on an execution issued for alimony in a divorce suit applies to take the poor debtor’s oath, his wife may meet such application by filing charges of fraud against him. Foster v. Foster, 130 Mass. 189. If one who has been convicted under the bastardy act, and committed to prison under the Pub. Sts. c. 85, § 15, seeks to obtain his discharge upon taking the poor debtor’s oath, as authorized in § 20, we find [431] nothing in the statutes, and see nothing in the nature of the case, to show that he should stand on any better ground. He may have the benefit of the laws for the relief of poor prisoners committed on execution, with their attendant incidents, one of which is that he is liable to be met with charges of fraud. Parker v. Page, 4 Gray, 533. Stockwell v. Silloway, 100 Mass. 287. Anderson v. Edwards, 123 Mass. 273. Morse v. Dayton, 125 Mass. 47. Everett v. Henderson, 150 Mass. 411. The defendant, however, contends that the cause of action in the present case had not accrued at the time when his conveyances which are found to have been fraudulent were made. The child was begotten about December 1, 1886, and born on August 23, 1887. The conveyances were made on July 28, 29, and 30, 1887. On July 23, 1887, and previously thereto, the defendant had been threatened with a prosecution under the bastardy act, but no complaint was actually made till September 13, 1887, which was after the birth of the child. By virtue of the statute, the cause of .action accrues “ when a woman ... is pregnant with a child which if born alive may be a bastard.” She may then make a complaint, a warrant for the arrest of the putative father may then be issued, and he may then be arrested and held to answer. Pub. Sts. c. 85, §§ 1, 9. The original complaint is the institution of the proceedings upon the cause of action. It is liable, however, to be defeated, if the child is not born alive. Schramm v. Stephan, 133 Mass. 559. The proceeding is a peculiar one, specially authorized by statute, and originally could be instituted only by the mother, though now it may also be done by certain public officers, and it is in part for her benefit. The cause of action must be deemed to accrue at the time when the complaint may first be made. The defendant further contends that the complainant, at the time of the conveyances made by him, was not his creditor within the meaning of the statute, and that, as he had no other creditors at the time, it cannot be said that he conveyed away his property with design to defraud his creditors. But if he designed to defraud future creditors, that is within the meaning of the statute. Subsequent creditors may avoid a conveyance made with an express intent to defraud them. Plimpton v. Goodell, 143 Mass. 365. Winchester v. Charter, 12 Allen, 606. In Woodcock v. Walker, 14 Mass. 386, it was held that the only [432] mode of enforcing performance of the order of the court for the payment of a certain weekly sum towards the maintenance of a bastard child, and for the giving of a bond to secure such payments, was to commit the defendant to prison until he should comply. This decision was made before the enactment of the Rev. Sts. c. 82, § 36, giving to the Court of Common Pleas a power, similar to that which had long existed in the Supreme Judicial Court, (St. 1782, c. 9, § 2,) to issue all writs and processes that might be necessary or proper to carry into effect the powers granted to them; and it may be open to question whether that decision is now applicable. But even before the enactment of the Rev. Sts., this court, in Damon v. Bryant, 2 Pick. 411, said that it was inclined to think that a woman who was entitled to maintain a complaint under the bastardy act might contest a conveyance made by the putative father as fraudulent. By the St. of 1825, c. 173, it was first enacted that one who had been imprisoned for ninety days under the bastardy act should be entitled to the benefit of the act for the relief of poor prisoners who are committed on execution for debt; and it was therein provided that the town or the mother should, at all times after such prisoner should have been liberated from prison by taking the oath, have a right to recover by action of debt any money which ought to have been paid to them respectively by said prisoner, in pursuance of the order of court. This provision in substance has remained in force ever since. Rev. Sts. c. 49, § 6. Gen. Sts. c. 72, § 12. Pub. Sts. c. 85, § 21. After his discharge on taking the oath, she is a creditor to all intents and purposes. Before his discharge, and after the judgment of the court, she is a creditor in the sense that she is entitled to receive from him money which he is under an obligation established by record to pay, and she has at least the remedy of enforcing this obligation by committing him to prison. She is also entitled to costs, for which she may take out an execution, though costs are not to be included in his bond. Young v. Makepeace, 103 Mass. 50, 57, and 108 Mass. 233, 236. On the whole, it seems to us clear, that, since he is entitled to make application to take the poor debtor’s oath in order to obtain his discharge from imprisonment upon her claim, she must be deemed to be a creditor within the meaning of the statute providing for the filing of charges of fraud; and that, if [433] he made the conveyances with the design of enabling himself to avoid payment of the sum which the court might order him to pay to her on the prosecution which he had reason to expect that she would institute, this must be deemed to have been done with a design to defraud creditors. According to the terms of the report, the entry must be, Verdict to stand.