AMOS R. LITTLE & others vs. EDWARD MATHEWS.

LUMMUS, J. On August 31, 1942, the plaintiffs began in the Municipal Court of the City of Boston an action of contract for rent against the defendant. On October 2, 1942, they recovered judgment for $2,202.28 and costs. On October 5, 1942, they applied for supplementary process to enforce payment of the judgment, under G. L. (Ter. Ed.) c. 224, Section 14, et seq. Pending the examination of the defendant -- the judgment debtor -- the plaintiffs filed charges of fraud against him, under G. L. (Ter. Ed.) c. 224, Section 19, the charges being those numbered First and Third in that section. After a plea of not guilty and a hearing, the Municipal Court found the defendant guilty, and sentenced him to imprisonment in jail for thirty days. The defendant appealed to the Superior Court as provided in that section. Donnelly v. Montague, 305 Mass. 14, 15, 16.

In the Superior Court the charges of fraud were tried to a jury. So far as appears the plaintiffs did not raise in that court the point that the appeal was defective because the defendant did not recognize with the sureties required by G. L. (Ter. Ed.) c. 224, Section 19, when he claimed an appeal on Friday, October 30, 1942. Brown v. Tobias, 1 Allen 385. Morse v. Dayton, 128 Mass. 451. But we assume that the point is jurisdictional. Clearwater Laundry Co. Inc. v. Wiley, 310 Mass. 255. The defendant did, however, furnish a recognizance with sureties, and thus perfected his appeal, on the following Friday, the sixth secular day after the sentence, within the time allowed for appeal. G. L. (Ter. Ed.) c. 231, Section 97. Morse v. O'Hara, 247 Mass. 183, 186. Daley v. District Court of Western Hampden, 304 Mass. 86, 94.

The plaintiffs excepted to rulings that on the First charge

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before mentioned they could not prove acts of fraud committed before the cause of action accrued, and that on the Third charge before mentioned they could not show acts of fraud committed more than three years before the bringing of the action of contract. G. L. (Ter. Ed.) c. 224, Section 19. It is enough to say that the bill of exceptions does not show that because of those rulings any evidence possessed by the plaintiffs was excluded. Consequently no harm to the plaintiffs appears, whether the rulings were right or wrong.

The judge ruled rightly that since the defendant had entered a plea of not guilty in the Municipal Court, he need not plead again in the Superior Court. Restuccia v. Bonner, 287 Mass. 592, 594.

No error is shown with respect to the exclusion of certain evidence over the exception of the plaintiffs. The evidence did not warrant a finding of guilty of fraud.

The plaintiffs excepted to the refusal of the judge to default the defendant when he appeared at the trial by counsel, but was not personally present. This exception raises the most substantial question in the case.

The former poor debtor law of this Commonwealth began with the absolute right of a judgment creditor at common law to arrest the debtor upon the execution and imprison him for debt, and gradually through the years set limitations and restrictions upon that right, by which a debtor without property (First Peoples Trust v. District Court of Lawrence, 251 Mass. 206) might gain freedom from liability to imprisonment by taking the poor debtor's oath. Commonwealth v. Badlam, 9 Pick. 362. Chase v. Ingalls, 97 Mass. 524, 530. Frost's Case, 127 Mass. 550, 554. Kerrigan's Case, 158 Mass. 220. Simon v. Justices of the Municipal Court of the City of Boston, 224 Mass. 122. B. F. Huntley Furniture Co. v. Parker, 291 Mass. 339, 340. At the same time, decrees in equity for the payment of money were generally enforced by proceedings for contempt, in which the ability of the defendant to pay was the main question. White v. White, 233 Mass. 39, 43, 44. Root v. MacDonald, 260 Mass. 344, 355. Commissioner of Banks

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v. Tremont Trust Co. 267 Mass. 331, 337. Rule 83 of the Superior Court (1932). By St. 1898, c. 549, judgments at law for the necessaries of life became collectible by "equitable process after judgment," in which the main question was the same as in the enforcement of equity decrees. Brown's Case, 173 Mass. 498. Giarruso v. Payson, 272 Mass. 417, 420. That statute became G. L. (1921) c. 225, but was repealed by St. 1927, c. 334, which substituted "supplementary proceedings" after judgment in civil cases generally. By the statute of 1927, now contained in G. L. (Ter. Ed.) c. 224, the equity practice of punishment for disobedience gained an almost complete victory over the common law practice of imprisonment for debt. Giarruso v. Payson, 272 Mass. 417. Giantsi v. Christopher, 277 Mass. 47. McDermott v. Justices of the Municipal Court of the City of Boston, 287 Mass. 563. B. F. Huntley Furniture Co. v. Parker, 291 Mass. 339. Goldman v. Adlman, 291 Mass. 492. Allard v. Estes, 292 Mass. 187. David v. Larochelle, 296 Mass. 302. Donnelly v. Montague, 305 Mass. 14.

One feature of the former poor debtor practice, originating in Rev. Sts. (1836) c. 98, Sections 27-38 (Everett v. Henderson, 150 Mass. 411, 419), and known as charges of fraud, which may be filed in a District Court "pending the examination of the defendant or debtor" (G. L. [Ter. Ed.] c. 224, Section 19; Andrews v. Cassidy, 142 Mass. 96; Leonard v. Bolton, 153 Mass. 428, 430), has been retained in the present supplementary proceedings after judgment. Comparison of the present statute (G. L. [Ter. Ed.] c. 224, Section 19) with the former poor debtor law (G. L. [1921] c. 224, Sections 40-43) shows only minor differences. The statute provides that charges of fraud "shall be considered in the nature of an action at law," and 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) is satisfied by proof by a preponderance of the evidence. Anderson v. Edwards, 123 Mass. 273, 277. See also Roberge v. Burnham, 124 Mass. 277; Grella v. Lewis Wharf Co. 211 Mass. 54, 59. An appeal to the Superior Court may be taken "in the same manner as from a

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judgment of a district court in civil actions." Section 19, supra. G. L. (Ter. Ed.) c. 231, Section 97. Notwithstanding the fact that a sentence of imprisonment may be imposed, the proceeding is held to be civil rather than criminal. We need not consider in this case whether imprisonment after a finding or verdict of guilty on charges of fraud is punishment for wrongdoing or merely a vestige of imprisonment for debt. Chamberlain v. Hoogs, 1 Gray 172. Parker v. Page, 4 Gray 533. Stockwell v. Silloway, 100 Mass. 287, 294, 295. Anderson v. Edwards, 123 Mass. 273. Morse v. Dayton, 125 Mass. 47. Everett v. Henderson, 150 Mass. 411. Bradley v. Burton, 151 Mass. 419. Noyes v. Manning, 162 Mass. 14, 16. Lamagdelaine v. Tremblay, 162 Mass. 339, 341. Brown's Case, 173 Mass. 498, 500. Restuccia v. Bonner, 287 Mass. 592. [Note p426-1]

In a District Court, upon a summons issued "requiring the judgment debtor to appear at a time and place named therein and submit to an examination relative to his property and ability to pay," it is true that "the failure of a judgment debtor personally to appear without reasonable excuse" is a default and a contempt. G. L. (Ter. Ed.) c. 224, Section 14. Howard v. Roach, 226 Mass. 80. Sturman v. McCarthy, 232 Mass. 44. McKeon v. Briggs, 233 Mass. 99. National Surety Co. v. Reed, 262 Mass. 372, 375. Modern Finance Co. v. Martin, 311 Mass. 509. And since charges of fraud in a District Court are an incident to an examination of the judgment debtor, it may be that he must appear personally to answer the charges, or be defaulted. G. L. (1921) c. 224, Section 43. Mowry's Case, 112 Mass. 394, 397. Radovsky v. Sperling, 187 Mass. 202. See also Everett v. Henderson, 150 Mass. 411, 417, et seq.; Leonard v. Bolton, 153 Mass. 428, 430.

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But the examination itself must end in the District Court, and cannot be transferred to the Superior Court by appeal. After an appeal from the judgment upon the charges of fraud, those charges become separated from the examination, and equally under the former poor debtor law and under the present practice nothing goes to the Superior Court except the questions of guilt and sentence. Fletcher v. Bartlett, 10 Gray 491. Russell v. Goodrich, 8 Allen 150. Mowry's Case, 112 Mass. 394, 397, 398. Lockhead v. Jones, 137 Mass. 25, 27. Donnelly v. Montague, 305 Mass. 14, 15, 16. Since an examination of the judgment debtor forms no part of such an appeal, the recognizance required upon such an appeal binds the appellant only "to enter and prosecute his appeal." G. L. (Ter. Ed.) c. 224, Section 19. Nothing is said about personally appearing, or not departing without leave. Compare G. L. (Ter. Ed.) c. 276, Section 65; c. 278, Section 18, dealing with criminal cases; Commonwealth v. Teevens, 143 Mass. 210. If the creditor wishes the testimony of the judgment debtor on the appeal, he may summon the judgment debtor as a witness. Anderson v. Edwards, 123 Mass. 273, 277. Only in case "final judgment is against" the judgment debtor on the appeal is he required by the terms of the recognizance to "surrender himself to be taken on execution [Note p427-1] and abide the order of the court." G. L. (Ter. Ed.) c. 224, Section 19.

There was no error, either in refusing to default the defendant, or in directing a verdict of not guilty.

Exceptions overruled.