It is argued that although the debtor was, according to the terms of the statute, "discharged and exempt from arrest or imprisonment in any suit or upon any proceedings for or on account of" the judgment, and was therefore discharged from his arrest on the execution, yet he remained liable to punishment upon the charges of fraud which were filed against him, and that the proceedings on those charges are not merely civil proceedings for or on account of the debt, but also independent criminal proceedings, to secure punishment for fraudulent acts, to which the statute exemption from arrest and imprisonment on account of the debt does not apply. We think that the proceedings on charges of fraud constitute part of the proceedings upon the arrest of the debtor, and are proceedings "for or on account of the debt." The only ground upon which it is or can be claimed that the proceedings on charges of fraud are distinct from proceedings on the execution is that the statute authorizes imprisonment as a punishment if the debtor is found guilty upon such charges; but we think that this is incident to the arrest for the benefit of the creditor, and not a substantive_provision for the punishment of crime. Pub. St. c. 162, § 40, provides that any person who is arrested on mesne process or on execution, who shall be admitted to take the oath for the relief of poor debtors, shall, upon taking the oath, be discharged and exempt from arrest or imprisonment upon the execution, or on any process founded on the judgment or cause of action, and prescribes the terms and conditions upon which the oath may be administered. The debtor is to apply to a magistrate, who is to fix a time and place for the examination of the debtor, and to issue notice thereof to the creditor. If the debtor submits himself to examination, and satisfies the magistrate of the truth of the facts set forth in the oath, he is to be admitted to take the oath, unless the creditor has made certain specific charges of fraud. If such charges are made, there are separate issues before the magistrate,-that of property, in which the debtor takes the burden of showing by his examination that he has no property, and upon which the magistrate has final jurisdiction; and that of fraud, in which the creditor has the burden of proof, and upon which either party has a right of appeal and of trial by jury. This statute provides (section 52) that "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" to the house of correction for a term not exceeding one year, or to confinement in jail not exceeding six months. The question is whether the charges of fraud are a part of or incident to the application of the debtor to obtain his discharge from the arrest by taking the oath for the relief of poor debtors, and are vacated with those proceedings by the discharge of the debt, or the discharge of the debtor from arrest for the debt, or whether they constitute a subv.23N.E.no.4-21

stantive and independent criminal proceeding, which will survive after the debtor is discharged and exempt from imprisonment on account of the debt, for the purpose of the punishment of crime.

A provision for punishment by impris onment is of a criminal nature, and is not an ordinary incident of civil proceedings. But it may be made by statute incident to and dependent upon civil proceedings for and on account of a debt. The question whether it is a dependent or an independent provision must be determined on the construction of the statute as a whole, and not upon a single provision of it. Charges of fraud cannot be made except in proceedings upon a writ of execution, and must be either to authorize the arrest of a debtor on an execution, or in answer to the application of a debtor to take the poor debtor's oath. It will not be contended that a debtor who has been exempted from arrest for debt can be arrested on charges of fraud under the statute, nor that charges can be made against a debtor under arrest except in proceedings on his application to take the oath, and it seems equally against the spirit and intent of the statute to hold a debtor upon charges of fraud made in proceedings upon his arrest, after he has been discharged and exempted from the arrest. The proceedings are declared to be in the nature of a suit at law, and are wholly in behalf of and under the control of the creditor, and the commonwealth cannot intervene. The creditor can appeal from the decision of the magistrate in the same manner as in civil proceedings. If the creditor fails to appear at any time fixed for a hearing, or does not upon request pay the fees of the magistrate, the debtor shall be discharged. Section 68. The recognizance required of the debtor, upon an appeal from a judgment against him on charges of fraud, is upon condition that, if final judgment is against him, he will surrender himself to be taken on execution, and abide the order of the court, or pay to the creditor the amount of the judgment; and there can be no question that the payment of the debt by the debtor, or the discharge of the debt, or the discharge of the debtor from arrest, by the creditor, will terminate the proceedings on the charges of fraud. So, if a defendant is arrested on mesne process, and, pending proceedings on charges of fraud filed on his application to take the poor debtor's oath, judgment is rendered for him in the action in which he was arrested, it cannot be contended that the charges of fraud can be further prosecuted against him. The judgment that there is no debt upon which execution can issue; the extinction of the debt by payment, or by the discharge of the creditor, or by a discharge in bankruptcy or insolvency; the discharge of the debtor from the arrest for the debt by the creditor, and the debtor's discharge and exemption from arrest for the debt by the insolvent law,-must all have the same effect upon charges of fraud. If the statute intends that the debtor shall be punished, upon conviction of the fraud charged, although he may have been discharged from the arrest, it also means that he shall be so punished although he may have been

discharged from the debt by the creditor or by law. If the proceedings on the charges of fraud are not for or on account of the debt, it is immaterial that the debt is discharged or paid; if they are for or on account of the debt, there can be no imprisonment under them after a discharge in insolvency, although the debt be not discharged.

The charges of fraud are declared to be in the nature of a suit at law, and the appeal is in like manner as an appeal in civil actions. The appeal is to be entered at a civil term of the appellate court, and the trial is to be according to the rules of evidence in civil actions. The effect of the decision in favor of the debtor is that he may have the benefit of the poor debtor's oath. The effect of a decision in favor of the creditor is that the proceedings on the application of the debtor to take the oath are determined, and the debtor may be further punished by imprisonment. When the debtor is discharged by law from the arrest, the proceedings, on his application to take the oath, are terminated. The condition upon which the application lies no longer exists, because he is not under arrest, and cannot be imprisoned for the debt. The part of the penalty that prohibits him from taking the oath becomes impossible, and all that remains-the imprisonment-is uncertain. It is optional with the magistrate or court whether there shall be any sentence. If the proceedIng survives merely for the punishment of fraud, the magistrate or court are to try the question whether the debtor has committed certain specified acts charged against him, and if he is found guilty is then to determine whether the act is one for which he shall be punished. This is not an ordinary incident of a criminal proceeding.

*

can be made as an independent, distinct, substantive, process against the debtor. They are only incidental to the previous proceeding commenced by him to obtain his release from confinement on civil process. It is true that, in case the debtor is found guilty of any of the charges alleged against him, he is liable to sentence of confinement at hard labor in the county jail or house of correction for a term not exceeding one year. That certainly is an incident of a criminal proceeding. But it is also true that in such case the civil proceeding commenced by the debtor is thereby terminated. In its results, therefore, it partakes quite as much of a civil as a criminal proceeding, while in all other respects it is exclusively a civil proceeding. See, also, the remarks of Mr. Justice MORTON in Anderson v. Edwards, 123 Mass. 273, where it was held that the rules of evidence in civil proceedings apply to a trial upon charges of fraud.

In Stockwell v. Silloway, 100 Mass. 287, the debtor was arrested on execution, and made application to take the poor debtor's oath. The plaintiff filed charges of fraud, and, upon examination and trial, the decision of the magistrate was in favor of the defendant, and the oath was administered to him, and he was discharged, and the plaintiff appealed. In the superior court the defendant pleaded in bar of the proceedings the commencement and pendency of proceedings in bankruptcy, relying on the provision of the bankrupt act that “no bankrupt shall be liable to arrest during the pendency of the proceedings in bankruptcy in any civil action, unless," etc. It was held that the provision of the statute did not apply, because the arrest was before the proceedings in bankruptcy were commenced, and the statute contemplated a new arrest for the benefit of the creditor. Mr. Justice GRAY said: "The fact that he [the debtor] was found not guilty by the magistrate, and was therefore permitted to go at large pending the appeal, does not make the taking of his body on execution, in case of his ultimate conviction, a new arrest. So far as the creditor is concerned, it is a restoring of the debtor to the confinement from which he had obtained a temporary relief pending the appeal. It is also an imprisonment by way of punishment for the fraud originally charged against him before the magistrate. In considering another part of the case, this language is used: "These proceedings are in their origin and their main features essentially of a civil, and not a crimi

ion of the magistrates upon charges of fraud should be entered at a civil or a criminal term of the appellate court. Mr. Justice BIGELOW, in deciding that the civil term had jurisdiction, said: 'All the proceedings under Rev. St. c. 98, §§ 27-38, are in their main features essentially of a civil, and not a criminal, nature. The charges of fraud which a creditor is allowed to file by virtue of these provisions are intended to be used by way of answer or plea in bar to the debtor's application for the benefit of the act for the relief of poor debtors, which is strictly, in its inception and progress, entirely a civil proceeding. No such charges

dental to the application of the debtor to be relieved from imprisonment by taking the poor debtor's oath, and are set up by way of answer to that application. * The provision that, if the debtor is found guilty of any of the charges of fraud, he may be sentenced to imprisonment in the jail or house of correction, is not, indeed, an ordinary incident of a civil action, but partakes of the nature of a punishment for crime." A similar decision was made in Minon v. Van Nostrand, 1 Low. 458. The question is stated by LowELL, J., as follows: "The only question for me is whether the filing of such charges by a judgment

The case of Stockwell v. Silloway, 105 Mass. 517, is apparently at variance with the conclusion we have reached. In that case it was decided that a discharge in bankruptcy of the debt upon which an execution debtor was arrested was no bar to imprisonment by way of punishment, upon conviction and sentence upon charges of fraud filed by the creditor upon the debtor's application to take the poor debtor's oath. The court say that the arrest upon sentence of imprisonment on the charges of fraud would be a new arrest, and that "the certificate of discharge in bankruptcy is no bar to his being sentenced and imprisoned as prescribed by statutes upon such conviction. This is the necessary result of the view taken of the statutes upon the subject by this court when the case was formerly before it, as reported in 100 Mass. 287, and by the district court of the United States in Minon v. Van Nostrand, 1 Low. 458." We are unable to concur either in the decision of the court, or in the effect given to the decisions upon which it proceeds. We cannot regard either of those cases as deciding that proceedings upon charges of fraud are or can become separate and distinct from proceedings for the arrest of the debtor on execution and his discharge from such arrest, and we are not aware of any other decision which sustains such a distinction. Indeed, it would appear from the reference to this case in Morse v. Dayton, 125 Mass. 47, that it was not regarded as turning on any such distinction, but as going the length of holding that the arrest of the debtor and the proceedings on his application to take the oath were not affected by the discharge in bankruptcy. In Morse v. Dayton, a debtor who had been arrested on execution, and applied to take the poor debtor's oath, was adjudged a bankrupt pending his examination. The creditor proved the debt in the bankruptcy proceedings, and afterwards filed charges of fraud in the poor debtor proceedings. The debtor was found guilty upon one charge of fraud, and on that ground only was refused the oath, and sentenced to 10 days' imprisonment. The debtor appealed, and pleaded the above facts in the appellate court. The opinion of the court upon the question is as follows: "The provision of the bankrupt act of the United States, that a creditor proving his debt in bankruptcy shall not be allowed to maintain any suit against the bankrupt, but shall be deemed to have waived all right of action against him, and to have discharged and surrendered all proceedings already commenced, and unsatisfied judgments already obtained, does not prevent the creditor from bringing a new suit and making a new arrest on the same debt, in case a certificate of discharge in bankuptcy is refused. Rev.

| St. U.S. §5105: St. U. S. June 22, 1874, c. 390, § 7; Valpey v. Rea, 124 Mass. 99. But a debtor discharged from arrest or execution, under the statutes of this commonwealth, on his application to take the poor debtor's oath, will be exempt from arrest upon any subsequent execution or process on the same judgment or for the same cause of action. Gen. St. c. 124, § 22. The proceedings on such an application, and on the incidental charges of fraud against the debtor, are not affected by the commencement of bankruptcy proceedings, or even by a certificate of discharge obtained thereon, and cannot, therefore, be defeated by the mere proof in bankruptcy of the creditor's claim. Stockwell v. Silloway, 100 Mass. 287, and 105 Mass. 517." It is obvious that the filing of charges of fraud after the proof of the debt by the creditor could have no bearing on the effect of the proof under the statute, and that the case decides-and Stockwell v. Silloway is regarded as deciding-that proceedings on the application to take the poor debtor's oath are not affected by the respective provisions of the bankrupt act. We cannot doubt that the effect of a certificate of discharge under our insolvent law is to release and discharge the debtɔr from imprisonment for or on account of debts for which he is discharged by the certificate, and also from debts which are provable against his estate in insolvency; and if we hold, as it seems plain that we must, that the proceedings upon charges of fraud are a part of and incidental to the proceedings upon the arrest, we must regard the provision for imprisonment as a feature in proceedings for and on account of the debt, and not a substantive and independent provision for the punishment of crime. Judgment for the defendant.

(150 Mass. 484)

In re SQUIRE et al. (Supreme Judicial Court of Massachusetts. Middlesex. Jan. 2, 1890.) INSTRUCTIONS-EXCEPTIONS.

The court gave requested instructions, adding some remarks, to which counsel, excepting, stated, by permission, what he understood his request to be, and the effect of the qualification. The court said he thought he had laid down the law as counsel stated it, and told the jury he would give them the ruling in the language used by counsel in their hearing, at which counsel indicated no

objection. Held, that no exception was saved.

Petition to prove bill of exceptions.

Cornelius McCart commenced an action of tort, in the superior court of Middlesex county, under chapter 270 of the Statutes of the year 1887, for an injury sustained by reason of the negligence of one Wilmot H. White, who was alleged to be a superintendent in the service of the defendants, John P. Squire, Frank O. Squire, and Fred. F. Squire. Evidence was introduced tending to show that White was hired and required to perform, and that he did perform, habitually, daily manual labor, as one of a gang of workmen, including the plaintiff, in and about the manufacture of fertilizer material in the factory of the defendants. Evidence was also introduced tending to show that the belt of the drying-machine in the fertilizer room frequently came off, and had to be put on, and that White, on

the 4th day of February, 1888, while put- | ting on the belt with two other workmen, was negligent in throwing down the stick used for that purpose, in consequence of which negligence the plaintiff was injured, for which injury action was brought. Evidence was also introduced tending to show that White was foreman or boss in the fertilizer room. The defendants presented requests for instructions, the first and second of which were as follows: (1) "If the jury find that White was hired and required to perform habitually, and that he did perform habitually, daily manual labor as one of the gang of workmen, including the plaintiff, in the manufacture of the fertilizer material in the factory of the defendants, although he was a superintendent for some purpc ses, he is not a superintendent within the meaning of the statutes of the year 1887, chapter 270, and the plaintiff is not entitled to recover for an injury caused by or rising from the negligence of said White." (2) "If the jury find that White was a superintendent for some purposes, and that he was also habitually engaged in daily manual labor while he was hired, ard which he was hired and required to perform as one of the gang of workmen, including the plaintiff, in the manufacture of the fertilizer material in the factory of the defendants, and that White was negligent in an act of the ordinary manual labor in which he was engaged, White was not exercising superintendence, within the meaning of the provisions of the statute of the year 1887, chapter 270, and the plaintiff is not entitled to recover for an injury caused by or arising from said negligence. The court gave the first ruling as requested, but with the following addition: "Gentlemen, you will understand what I have said to you with reference to this, and I give you this instruction with this addition: But you are to find, upon all the evidence before you, whether he was or was not a superintendent, that is, whether he did or did not solely or principally exercise the duties of superintendence; and the fact that he performed manual labor every day, or upon occasion, in different parts of the department, does not prevent him exercising as his principal duty and being such a superintendent, as is contemplated by the statute." The court gave the second ruling as requested, but with the following addition: "Gentlemen, I give you this instruction, with the instruction which I have already given you on this subject, and as defined or with the definition which I have already given you. You will understand from what I have already said that, if the evidence is conflicting,-as there is conflicting evidence, it is for you to determine whether he was or was not exercising, under the language of the statute, superintendence as his main and principal duty in the work; whether, under the language of the statute, it was his principal duty; whether his principal duty was that of superintendence. This evidence is conflicting, and it is for you to determine whether that is so or not, notwithstanding the fact that he performed manual labor in connection with superintendence. The defendants' counsel said that he desired to except to the remarks

made in giving the rulings. The court asked him to specify the point or points to which he objected. He stated that his request for rulings "amounts to this: That where a man is required to do manual labor daily, and actually is in the performance of manual labor daily,-not casually, not occasionally, but as a habit, performed manual labor in and about the factory or room where he is employed to work, even although he may be intrusted with certain duties which do partake of the nature of superintendence, or even can be called that of superintendence,-that the question then comes whether he is such a superintendent as is included within the meaning of the statute;" and that he considered that the language used by the court constituted a qualification which precluded the jury from finding that such a person had not the duties of superintendence. The court then said that he considered that he had given the instruction desired fully, but again addressed the jury, and said that he thought that the rulings given were not inconsistent with the ground taken by counsel stated in their hearing; but, in order that there might be no doubt about it, said that he gave them the ruling which counsel desired in precisely the language he had used, and which they had heard. The defendants' bill of exceptions not being allowed, they present this petition to prove the same.

John P. Wyman, Jr., and B. F. Butler, for petitioners.

KNOWLTON, J. The defendants' requests for instructions were presented to the presiding justice at the close of the charge, which covered the principal questions in the case. The first instruction asked for stated a proposition of law on the assumption that White "was hired and required to perform habitually, and did perform habitually, daily manual labor as one of the gang of workmen." After giving it, the presiding justice, apparently by way of caution, reminded the jury that the question was, as he had previously stated it, whether White "did or did not solely or principally exercise the duties of superintendence. He told them that a finding, which included somewhat less than the hypothesis stated in the request, namely, "that White performed manual labor every day or upon occasion in different parts of the department," would not prevent their deciding that he was a superintendent, within the meaning of the statute. second request for an instruction assumed the same facts as the first, and also the fact that White's negligence was in an act of the ordinary manual labor in which he was engaged. After complying with this request, the justice, without referring to the second branch of the assumption, repeated to the jury, in slightly different language, the first part of the caution which he had given in connection with the former instruction. Whether the additions which the judge gave to the instructions e deemed a material modification of them, or merely instructions not inconsistent with the others in a field not covered by them, it is obvious that the judge thought they were not in conflict with those re

The

quested, and he expressed that opinion to | the defendants' counsel. At the request of the judge, the counsel then attempted to point out the portion of the charge to which he objected. The judge again expressed the opinion that he had laid down the law as the defendants' counsel then stated it, and told the jury that he again gave the ruling in the language which the counsel then used. The judge understood that he had complied with the defendants' requests, and that no exception was insisted on, and the defendants' counsel said nothing to indicate dissatisfaction with the last instruction, which purported briefly to cover the whole subject. If the defendants' counsel still thought his requests had been materially modified, and intended to save an exception, it was his duty, in fairness to the plaintiff as well as to the judge, to make known his dissent from the views last expressed by the presiding justice, and his wish to save an exception. The plaintiff's counsel, to avoid an exception, might then have suggested some qualification of the charge, or the judge might, of his own motion, have given further instructions which would have prevented the possibility of misunderstanding. We are of opinion that the exception was not properly saved. Petition dismissed.

(150 Mass. 467)

BABCOCK V. OLD COLONY R. Co. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 2, 1890.)

NEGLIGENCE OF MASTER-PROVINCE OF JURY. 1. In an action for injuries to a brakeman, received in a freight-yard in attempting to get on an engine in motion, from sleepers lying by the track, where he testifies that he did not know they were there, the question of contributory negligence is for the jury.

2. One witness having testified that the pile of sleepers, which was three or four feet wide, and lay within eighteen inches of the track, had been left there by sectionmen for five weeks, and others that they had only been there two or three days, there is evidence for the jury of negligence in the supervision of the road.

3. There being evidence that different persons had some responsibility in supervision of the tracks, in such case, and one printed instruction to section-masters being, "They will see that no wood, lumber, ties, or other obstructions are piled within six feet of the track," there is sufficient evidence to authorize the submission to the jury of the question whether the section-master was so far charged with the duty of supervision as to render defendant liable for injury to one of its servants through his negligence.

4. An instruction "that if defendant had used reasonable care in the supervision of the sectionmen, and of the use of the yard, plaintiff could not recover for the neglect of the sectionmen in leaving the ties by the track, or the neglect of the yardmaster or section-master or road-master in failing to have them removed, "is properly refused, as requiring due care only in supervision of the sectionmen and use of the yard.

Exceptions from superior court, Suffolk County; ROBERT C. PITMAN, Judge.

Action of tort for injuries received by the plaintiff, George W. Babcock, while in the employment of the defendant as a freight brakeman in its freight-yard at South Boston. Plaintiff, in attempting to get upon the foot-board of the tender of the switching engine with which he was working, while the train was in motion, was injured

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by coming in contact with some railroad sleepers which had been taken from the track, and left within 17 or 18 inches of the rails by the sectionmen employed in keeping the tracks in repair. The defendant requested the court to instruct the jury that the section-foreman was a fellow-servant of the plaintiff, and that the plaintiff could not recover for his negligence in leaving the ties by the track. The court refused to so instruct, and instructed the jury as follows: "In regard to the section-master, I am asked to instruct you that the road is not responsible for his negligence. Instead of doing that, I shall give you a general proposition, and shall say that, if the sectionmaster was simply there directing the work of the men, then, if the men were careless, and he was careless in permitting them to leave these sleepers there, and keep them there, the road would not be responsible for it. If you find the section-master had the duty, under the rules and regulations for the operation of the road, upon the evidence in the case, the duty of supervision, which duty he neglected,-of afterwards seeing that these things were removed, why, then, that might be negligence for which the road would be answerable." The court also instructed the jury that, if this obstruction existed only two or three days, it would be for them to inquire whether it should or should not have drawn the attention of those whose duty it was to supervise the road, whether they either saw or ought to have seen it, and so failed of proper supervision in not removing it before the accident. The defendant also requested the court to instruct the jury that if the defendant had used reasonable care in the supervision of the sectionmen, and of the use of the yard, the plaintiff could not recover for the neglect of the sectionmen in leaving the ties by the track, or the neglect of the yard-master or the section-master or road-master in failing to have them removed, or to report that they were there. The court refused to instruct as thus requested, and instructed the jury that the question for them was whether the sleepers were left where they were by the mere negligence of a sectionman in throwing them as they were, and not removing them, or by negligence in the supervising agents of the road in suffering them to remain where they were the length of time they did so suffer them; that it was not enough that the servants and agents of the defendant were competent and suitable persons, and had received proper instructions, because the defendant must go further, and show that those servants had done their duty in the matter, if they were doing the master's duty; that it was not sufficient that the servants were intelligent and competent, but if they neglected their duty the defendant was still responsible, unless it should have exercised responsible care and supervision over them in seeing that the place was in proper condition; that in determining this something would depend (it was for the jury to say how much) upon the time which they should find the sleepers to have continued there; whether the proximity to the other offices of the road, the main freight-house, and the frequency with which the engines were