On a body execution issued against a debtor on a judgment in the
Circuit Court of the United States for the District of
Massachusetts, his arrest was authorized on the ground that he had
property not exempt which he did not intend to apply to pay the
judgment claim. Notice having been given to the creditor that the
debtor desired to take the oath for the relief of poor debtors, his
examination was begun before a United States commissioner. Pending
this, charges of fraud were filed against him in having
fraudulently disposed of property with a design to secure the same
to his own use and to defraud his creditors. His examination as a
poor debtor was suspended, and a hearing was had on the charges of
fraud. After the testimony thereon was closed, the commissioner
refused to resume the poor debtor examination, and then sustained
the charges of fraud and sentenced the debtor to be imprisoned for
six months. His examination as a poor debtor was not read to him
and corrected, and he did not sign or swear to it, and the
commissioner refused to administer to him the oath for the relief
of poor debtors. He was then taken into custody under the execution
and lodged in jail. On a hearing on a writ of habeas corpus, the
circuit court discharged such writ and remanded him to the custody
of the marshal. On an appeal to this Court,
held that the
order must be affirmed.
As the commissioner had jurisdiction of the subject matter and
of the person of the debtor, any errors or irregularities in the
proceedings could not be reviewed by the circuit court on habeas
corpus, or by this Court on the appeal.
Habeas corpus. The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an appeal by William J. Stevens from an order of the
Circuit Court of the United States for the District of
Page 136 U. S. 469
Massachusetts refusing to discharge him from custody on a writ
of habeas corpus. The following are the material facts.
William G. Fuller having recovered a judgment against Stevens in
the Circuit Court of the United States for the District of
Massachusetts for $18,000, an execution was issued thereon to the
marshal, which commanded him, if he could find no property
belonging to Stevens, to take his body and commit him to jail.
Accompanying that execution was an affidavit made by Fuller that
the judgment in question amounted to $20, exclusive of costs, and
that $20 remained uncollected, and that he believed, and had good
reason to believe, that Stevens had property not exempt from
execution which he did not intend to apply to the payment of the
judgment claim, and that he intended to leave the state and
district of Massachusetts. Thereupon a commissioner of the circuit
court certified that, after due hearing, he was satisfied that
there was reasonable cause to believe that the charge made in the
affidavit was true, and that, satisfactory cause having been shown,
he thereby authorized the arrest of Stevens, if his arrest was
authorized by law, to be made after sunset. Stevens was arrested
and brought before Henry L. Hallett, a United States commissioner
for the District of Massachusetts, who interrogated him, and he
declared that he did not desire to take any oath or to recognize or
to give bail for his appearance at any time, and he failed to
recognize or give bail. Thereafter the commissioner gave notice to
Fuller that Stevens desired to take the oath for the relief of poor
debtors at a time specified and appointed at the office of the
commissioner. Stevens then gave a recognizance for his appearance
at such time and place to be examined. He duly appeared and
submitted to be examined, protesting that the commissioner was not
authorized by law to order him to be examined touching his property
and stating that he did not waive any informalities in his arrest
or in any of the other proceedings. His examination was begun and
continued for some time. In the course of it, he offered evidence
from the Court of Insolvency for the County of Suffolk, in the
district, that proceedings in insolvency had been begun by him and
were then pending. Thereupon
Page 136 U. S. 470
Fuller filed with the commissioner charges of fraud against
Stevens, alleging that Stevens, since he had contracted the debt
for which the judgment was rendered, had fraudulently conveyed,
concealed, or otherwise disposed of some part of his estate with a
design to secure the same to his own use and to defraud his
creditors, and specifying the particulars of seven different
conveyances of land and a mortgage of land and three payments of
money by him with such design. The examination of Stevens as a poor
debtor was suspended by the commissioner, and a hearing was had
before him on such charges of fraud.
* Stevens put in a
plea of want of jurisdiction
Page 136 U. S. 471
as to such charges, on the ground that all the transfers of
property but one were made by him in the State of New
Page 136 U. S. 472
Hampshire, and while he was an inhabitant thereof, and not
within the jurisdiction of Massachusetts or of any court or
Page 136 U. S. 473
magistrate therein, and that at the time of the filing of such
charges, he had been adjudged an insolvent debtor under the
Page 136 U. S. 474
laws of Massachusetts by the judge of the Court of Insolvency
for Suffolk County, and all of his right, title, and interest in
the property mentioned in the charges of fraud had become vested in
said court of insolvency. At the same time, he filed with the
commissioner a motion to quash the charges on the ground that it
appeared therefrom that the property alleged was conveyed by him
while he was a resident in and a citizen of New Hampshire, and was
conveyed by him in New Hampshire, and not within the jurisdiction
of the courts of Massachusetts
Page 136 U. S. 475
or of the commissioner or of the Circuit Court of the United
States for the District of Massachusetts, and that he could not be
tried by such commissioner or sentenced by him thereon if found
guilty, and also because all of the charges were vague, and did not
with sufficient certainty set for the any fraudulent transfer of
any property belonging to him. Afterwards, an assignment in
insolvency of the estate, real and personal, of Stevens was made by
the judge of the court of insolvency to duly appointed assignees.
After the close of the testimony before the commissioner on the
charges of fraud, and before his decision thereon was rendered,
Stevens requested that his examination as a poor debtor be again
taken up and he be allowed to offer evidence of his releases and
conveyance to his assignees in insolvency at their request of all
his title to the estates so charged to have been fraudulently
conveyed by him, and requested also that he be allowed to complete
his own examination as a poor debtor, which requests were refused
by the commissioner.
On the 25th of January, 1890, the commissioner gave his decision
on the charges of fraud, sustaining them and finding Stevens guilty
thereof and sentencing him to be imprisoned for six months in the
jail at Boston. Stevens appealed from that decision to the Circuit
Court of the United States for the District of Massachusetts, and
gave a recognizance with sureties. Thereafter, but on the same day
and before any other or further order or act of the commissioner
and before any finding made on the charge in the affidavit which
accompanied the execution as to property, Stevens again requested
that his examination as a poor debtor, so suspended, be taken up
and he be permitted to offer evidence of the releases and
conveyance above mentioned, and also to complete his own
examination as a poor debtor. Both of such requests were refused by
the commissioner, and the examination of Stevens as a poor debtor
was not completed. No other witness than Stevens was offered during
his examination as a poor debtor, and no other evidence except such
assignment in insolvency was offered thereon, except that partly
given by him. His examination was not read to him and corrected,
and he did
Page 136 U. S. 476
not sign or swear to it. On the same day, the commissioner made
a certificate that it appeared that Stevens "has property and
estate to the amount of twenty dollars, besides the estate, goods,
and chattels which are by law exempt from being taken on
execution," and that, after due examination of him, the
commissioner refused to administer to him the oath for the relief
of poor debtors. Thereupon Stevens was taken into custody by the
marshal of the district under the execution and lodged in the
Suffolk County Jail, where he was detained.
On the foregoing facts, Stevens, on the 28th of January, 1890,
obtained from the Circuit Court of the United States for the
District of Massachusetts a writ of habeas corpus, returnable in
that court. At the hearing thereon, evidence was introduced by both
parties as to what took place at the hearing before the
commissioner on the 25th of January, 1890, and the commissioner
himself was examined as a witness. The circuit court ordered that
the writ of habeas corpus be discharged and that Stevens be
remanded to the custody of the marshal. To review that order,
Stevens has taken an appeal to this Court.
The circuit court stated its decision and the grounds thereof in
these words:
"The court decided that although no formal request appeared to
have been made by either party before the commissioner that the
examination of the debtor should be in writing, yet as it was in
fact taken in writing and this mode of proceeding was adopted with
the assent of both parties, this was equivalent to a previous
formal request that it should be so taken; that as the examination
was not signed and sworn to by the debtor as required by the
statute, and no opportunity was given him to sign and swear to it,
and he never refused to do so, the examination was imperfect and
incomplete, and had not reached a stage to justify the commissioner
in assuming to pass upon the question whether the debtor was
entitled to be admitted to take the oath for the relief of poor
debtors; that the commissioner's certificate annexed to the
execution was therefore premature and irregular; that this
irregularity did not, however, have the effect to
Page 136 U. S. 477
render all the proceedings before him absolutely void, so as to
authorize the court to direct the discharge of the debtor from
custody upon this writ, and thus deprive the creditor of his right
to hold the body of the debtor for his debt, but that the debtor's
remedy was rather by application to the court to set aside the
certificate as irregular and to direct that he might go at large
under his old recognizance, or upon a new recognizance, and that
the examination might proceed before the commissioner and, when
completed, a new adjudication be made by him."
We are of opinion that the order of the circuit court must be
affirmed. The matters alleged before that court against the action
of the commissioner did not go to the question of his jurisdiction
so as to make such action reviewable on habeas corpus by the
circuit court. He had jurisdiction of the subject matter and of the
person of Stevens under the proceedings instituted in conformity
with the statutes of Massachusetts. The objections taken on the
part of Stevens at the hearing before the commissioner and also
urged here, to the proceedings before the commissioner, all of them
went only to alleged errors and irregularities in those
proceedings, which could not be reviewed by the circuit court on a
writ of habeas corpus, and cannot be taken cognizance of by this
Court on this appeal.
It was proper for the circuit court to admit in evidence the
poor debtor examination before the commissioner, and the evidence
offered before him on the charges of fraud.
It is conceded in the brief of the counsel for Stevens that the
proper affidavit was made and the proper certificate of the
commissioner was annexed to the execution authorizing the arrest.
The points urged before the circuit court and urged here, that
Stevens was entitled to have his examination as a poor debtor read
over to him and to have it corrected and to sign and swear to it,
and the other points raised by him as to the proceedings before the
commissioner, are mere questions of irregularity, not reviewable by
the circuit court on habeas corpus or by this Court on this appeal.
This rule is well established in cases of original writs of
Page 136 U. S. 478
habeas corpus issued by this Court.
Ex Parte Parks,
93 U. S. 18;
Ex
Parte Reed, 100 U. S. 13,
100 U. S. 23;
Ex Parte Siebold, 100 U. S. 371,
100 U. S. 375;
Ex Parte Carll, 106 U. S. 521;
Ex Parte Wilson, 114 U. S. 417,
114 U. S.
421.
The same doctrine applies to the circuit court in the present
case in its review on habeas corpus of the proceedings before the
commissioner, and it has been applied by this Court on appeals to
it from inferior courts in habeas corpus proceedings.
Benson v.
McMahon, 127 U. S. 457,
127 U. S.
461-462;
In re Coy, 127 U.
S. 731,
127 U. S.
758-759;
Ex Parte Nielsen, 131 U.
S. 176,
131 U. S.
182-184;
Ex Parte Savin, 131 U.
S. 267,
131 U. S. 279;
Ex Parte Cuddy, 131 U. S. 280,
131 U. S. 285.
The case of
Ex Parte Savin, supra, was an appeal from an
order of a circuit court of the United States dismissing a petition
for a writ of habeas corpus, where the party had been imprisoned
for contempt of court by a district court of the United States.
This Court said, speaking by MR. JUSTICE HARLAN:
"Our conclusion is that the district court had jurisdiction of
the subject matter and of the person, and that irregularities, if
any, occurring in the mere conduct of the case, do not affect the
validity of its final order. Its judgment, so far as it involved
mere errors, cannot be reviewed in this collateral proceeding, and
must be affirmed."
These views are conclusive to show that
The order of the circuit court must be affirmed, and it is
so ordered.
* These proceedings were had pursuant to provisions in
Pub.Stats.Mass. c. 162, set forth as follows in appellee's
brief:
"SEC. 17. Except as provided in sections five to sixteen
inclusive, and except in actions of tort, no person shall be
arrested on an execution in a civil action unless the judgment
creditor or some person in his behalf, after execution is issued
amounting to twenty dollars exclusive of all costs which make part
of said judgment, whether the same have accrued in the last action
or in any former action on the same original cause of action, and
while so much as that amount remains uncollected, makes affidavit
and proves to the satisfaction of some magistrate named in section
one, that he believes and has good reason to believe:"
"First. That the debtor has property not exempt from being taken
on execution, which he does not intend to apply to the payment of
the plaintiff's claim, or"
"Second. 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 with a design to
secure the same to his own use or defraud his creditors, or"
"Third. That since the debt was contracted or the cause of
action accrued, the debtor has hazarded and paid money or other
property to the value of one hundred dollars or more in some kind
of gaming prohibited by the laws of this Commonwealth, or"
"Fourth. That since the debt was contracted, the debtor has
willfully expended and misused his goods or estate or some part
thereof for the purpose of enabling himself to swear that he has
not any estate to the amount of twenty dollars except such as is
exempt from being taken on execution, or"
"Fifth. If the action was founded on contract, that the debtor
contracted the debt with an intention not to pay the same, or"
"Sixth. That the debtor is an attorney at law; that the debt
upon which the judgment on which the execution issued was
recovered, was for money collected by the debtor for the creditor,
and that said attorney unreasonably neglects to pay the same."
"And such affidavit and the certificate of the magistrate that
he is satisfied there is reasonable cause to believe the charges
therein contained, or some one of them, are true, shall be annexed
to the execution. If the judgment debtor lives or has his usual
place of business in any county in this state, the application for
a certificate authorizing his arrest shall be made in that county;
otherwise it may be made in any county."
"SEC. 25. If in addition to the first charge specified in
section seventeen, the judgment creditor, or someone in his behalf,
makes affidavit and proves to the satisfaction of the magistrate
that there is good reason to believe that the debtor intends to
leave the state, the magistrate may, without notice to the "
"SEC. 27. When arrested on mesne process, the defendant shall be
allowed a reasonable time to procure bail, and when arrested on
such process or on an execution, he shall be allowed reasonable
time to procure sureties for his recognizance hereinafter
mentioned. When arrested on mesne process, if he does not give
bail, and when arrested on execution in any case, he shall be taken
before some judge of a court of record, or of a police, district,
or municipal court, or a master in chancery, commissioner of
insolvency, or, except in the County of Suffolk, a trial
justice."
"SEC. 31. If the defendant or debtor, when taken before the
magistrate or at any time when entitled thereto, desires to take an
oath as hereinafter provided, and to have a time fixed therefor,
the magistrate shall appoint a time and place for his examination,
and shall issue a notice thereof to the plaintiff or creditor,
signed by him and designating his official capacity, substantially
in the following form:"
"To A___ B___: C___ D___, arrested on mesne process [or
execution] in your favor, desires to take the oath for the relief
of poor debtors [or, the oath that he does not intend to leave the
State] at [naming the day and hour and place]."
"E___ F___ (
Magistrate)."
"Notice may be given that the defendant arrested on mesne
process as aforesaid desires to take both of said oaths, and the
form of notice may be varied accordingly."
"SEC. 33. When a defendant or debtor has given notice of his
desire to take the oath for the relief of poor debtors, no new
notice of the same shall be given until the expiration of seven
days from the service of the former notice unless the former notice
was insufficient in form or service. But if the oath for the relief
of poor debtors has been refused, no application to take the same
shall be made by the defendant or debtor until the expiration of
seven days from the hour of such refusal."
(As amended by the Act of 1888, c. 419, ยง 8.)
"SEC. 36. Pending the examination and at any time after the
defendant or debtor is carried before a magistrate, the magistrate
may accept his recognizance with surety or sureties in a sum not
less than double the amount of the execution, or of the
ad
damnum in the writ if he is arrested on mesne process, that he
will appear at the time fixed for his examination, and from time to
time until the same is concluded, and not depart without leave of
the magistrate, making no default at any time fixed for his
examination, and abide the final order of the magistrate thereon.
No recognizance under this chapter, except in case of appeal under
section fifty, shall be accepted at any time after the oath has
been once refused to the debtor."
"SEC. 38. If the defendant or debtor has given notice that he
desires to take the oath for the relief of poor debtors, the
magistrate shall examine him on oath concerning his estate and
effects, the disposal thereof, and his ability to pay the debt or
satisfy the cause of action for which he is arrested, and shall
hear any legal and pertinent evidence that may be introduced by
either party. The plaintiff or creditor may upon such examination
propose to the defendant or debtor any interrogatories pertinent to
the inquiry, and the examination shall, if required by either
party, be in writing, in which case it shall be signed and sworn to
by the defendant or debtor and preserved by the magistrate."
"SEC. 33. The magistrate, if satisfied upon the examination of
the truth of the facts set forth in the oath to be taken by the
defendant or debtor, and in the certificate provided for in the
following section, and if it appears to him that the defendant or
debtor is entitled to his discharge under the provisions of this
chapter, shall administer to him the following"
"
Oath, for the Relief of Poor Debtors"
"I [here repeat the name] do solemnly swear that I have not any
estate real or personal, to the amount of twenty dollars, except
the estate, goods, and chattels which are by law exempt from being
taken on execution, but not excepting intoxicating liquors, and
that I have not any other estate now conveyed, concealed, or in any
way disposed of with the design to secure the same to my own use or
to defraud my creditors. So help me God."
"SEC. 40. After administering the oath, the magistrate shall
make a certificate thereof under his hand, as follows, to-wit:"
"S____ ss. I hereby certify that A___ B___, a poor prisoner
arrested upon execution [or on mesne process], has caused E___
F___, the creditor [or plaintiff] at whose suit he is arrested to
be notified according to law of his desire to take the benefit of
the law for the relief of poor debtors; that in my opinion, said
A___ B___ has not any estate, real or personal, to the amount of
twenty dollars, except the estate, goods and chattels which are by
law exempt from being taken on execution, but not excepting
intoxicating liquors, and has not any other estate now conveyed,
concealed, or in any way disposed of with design to secure the same
to his own use or defraud his creditors. And I have after due
examination of said A___ B___ administered to him the oath for the
relief of poor debtors."
"Witness my hand this ___ day of ___ in the year ___."
"A___ B___ (
Magistrate)"
"Upon taking the oath, the defendant or debtor shall be
discharged from arrest or imprisonment, and shall be forever exempt
from arrest on the same execution, or on any process founded on the
judgment, or on the same cause of action, unless convicted of
having willfully sworn falsely on his examination. If he is
arrested or committed on execution, the judgment shall remain in
full force against his estate, and the creditor may take out a new
execution against his goods and estate as if he lad not been
committed, and if he is committed on mesne process, any execution
which may afterwards issue on a judgment for the same cause of
action shall issue against his goods and estate, and not against
his body. The death of the execution creditor shall not affect any
proceedings instituted under the provisions of this chapter."
"SEC. 44. If the debtor arrested on execution and taken before
the magistrate does not desire to take an oath or fails to procure
surety or sureties to the satisfaction of the magistrate as before
provided, or if upon his examination the oath or oaths are refused
to him, of which refusal a certificate shall be annexed to the
execution and signed by the magistrate, he shall be conveyed to
jail, and there kept until he has recognized as herein provided (if
the oath for the relief of poor debtors has not been refused him),
or until the execution is satisfied or he is released by the
creditor, or has given notice as before provided and taken the oath
for the relief of poor debtors, or the oath that he does not intend
to leave the state, in cases where such oath is permitted."
"SEC. 49. When either of the charges named in section seventeen
numbered second, third, fourth, fifth, and sixth is made as therein
provided, or when the plaintiff or creditor or anyone in his
behalf, at any time pending the examination of a defendant or
debtor who has given notice of his desire to take the oath for the
relief of poor debtors, files such charges in writing, subscribed
and sworn to by the plaintiff or creditor or by some person in his
behalf, the charges shall be considered in the nature of a suit at
law, 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. If a person arrested on execution, after such arrest,
misspends or misuses to the amount of forty dollars, or to an
amount equal to the sum for which he is arrested or committed, his
goods, effects or credits not exempt from being taken on execution
but which cannot be attached by ordinary process of law, without
first having offered such goods, effects, or credits to the
arresting creditor in satisfaction or part satisfaction of his
debt, the charge of such misspending or misuse may be filed in the
manner herein provided for filing charges of fraud. The plaintiff
or creditor shall not upon the hearing give evidence of a charge of
fraud not made or filed as herein provided, nor of a fraudulent act
of the debtor committed more than three years before the
commencement of the original action."
"SEC. 50. When the hearing is had on the charges of fraud
mentioned in the preceding section and judgment is rendered thereon
by the magistrate, either party may appeal to the superior court in
like manner as from the judgment of a trial justice in civil
actions. The trial in the court appealed to shall be by a jury
unless the court with the consent of both parties hears and
determines it without a jury."
"SEC. 51. If the plaintiff or creditor appeals, he shall, before
the allowance of the appeal, recognize with sufficient surety or
sureties to enter and prosecute his appeal with effect, to produce
at the court appealed to a copy of all the proceedings upon said
charges, and to pay all costs if judgment is not reversed. If the
defendant or debtor appeals, he shall recognize in like manner and
with the further condition that if final judgment is against him,
he will within thirty days thereafter surrender himself to be taken
on execution and abide the order of the court, or pay to the
plaintiff or creditor the whole amount of the original judgment
against him."
"SEC. 52. If the defendant or debtor, after either of said
charges has been made or filed against him, voluntarily makes
default at a time appointed for the hearing, or if upon a final
trial he is found guilty of any of them, he shall have no benefit
from the proceedings under this chapter, and may be sentenced by
the magistrate or court before whom the trial is had to confinement
at hard labor in the house of correction for a term not exceeding
one year, or to confinement in jail not exceeding six months. But
the defendant or debtor, after the expiration of any sentence, may
renew his application for the oath for the relief of poor debtors
as though he had not been found guilty and sentenced."