a statement in big direct examination which he has denied on his cross-examination, and in such examination has appeared badly, for the purpose of removing the effect of such appearance." Counsel for the defendant disclaimed any such purpose, and excepted to the remark of the court characterizing the witness as having appeared badly. That the court had no right to pass upon the appearance of the witness. The court then stated to the counsel that it was not intended to characterize the appearance of the witness, but to call attention of the counsel to the limit of a re-examination, and that for the purpose of limiting the re-examination it was for the court to consider the appearance and statement of the witness, and the question asked on re-examination. Counsel for the defendant then excepted to the last remark of the court. C. N. Harris, Second Asst. Atty. Gen., for the Commonwealth. Cummings & Higginson, for defendant. KNOWLTON, J. The defendant does not contend that the ruling in regard to the re-examination of the witness was erroneous, but argues that the remark of the presiding justice, referring to the appearance of the witness, improperly influenced the jury. This remark was not made to the jury, but to the defendant's counsel, to bring to his attention the proper limits of a re-examination, and the matters to be considered by the judge in determining these limits. For that purpose, as between the court and the counsel, it was proper. The presiding justice stated to the counsel that it was not intended to characterize the appearance of the witness, and if the jury heard the original remark they doubtless heard this statement also. Moreover, it appears by the bill of exceptions that full instructions given upon all parts of the case, and doubtless the jury were made to understand that the court could not properly influence them in regard to the appear charge of drunkenness by the voluntary use of intoxicating liquor, and brings exceptions. Exceptions overruled. C. N. Harris, Second Asst. Atty. Gen., for the Commonwealth. Fred V. Fuller, for defendant. KNOWLTON, J. The defendant contends that under St. 1891, c. 427, he cannot be sentenced for drunkenness, and that the law is unconstitutional. In those parts to which his contention relates the statute differs from previous laws principally in giving an arrested person an opportunity to show, if he can, that he has not been arrested twice for drunkenness within the 12 months next preceding, or that, having been so arrested, he has been tried and acquitted in one of the cases. If he shows this, he may properly be discharged without a trial, and his case may be placed on file. There is no doubt of the constitutional authority of the legislature, in the exercise of the police power of the commonwealth, to enact a law providing for the punishment of drunkenness. The act referred to makes drunkenness punishable by the courts. The power to make a complaint and obtain a conviction does not depend on the arrest of the offender by an officer without a warrant while he is intoxicated, but it is the object of the law, when a complaint is made, and the offender is brought into court, to enable him to obtain his release without a trial if he can satisfy the court or magistrate that he has not been treated as an offender against this statute twice before within the 12 months next preceding, and, if the court or magistrate deems it proper, to release him. Under this law, as under previous statutes, the first offense of drunkenness is punishable if the case proceeds regularly to a trial on the complaint, but a way is opened whereby the defendant may have the prosecution suspended, and be released in the discretion of the court. The provision is that "his case may be placed on file." Now, a case placed on file is not nec ance of the witness as affecting his cred-essarily finally disposed of, but it may aft ibility, and that they were the sole judges in matters of that kind. No other exception was argued, and we discover no error in the proceedings. Exceptions overruled. (157 Mass. 471) COMMONWEALTH v. MORRISEY. (Supreme Judicial Court of Massachusetts. Bristol. Dec. 6, 1892.) CONSTITUTIONAL LAW-PUNISHMENT FOR DRUNKENNESS. 1. The enactment of St. 1891, c. 427, providing a punishment for drunkenness, is within the constitutional authority of the legislature. 2. The provision of St. 1891, c. 427, which permits any person arrested for drunkenness to show that he has not been convicted of a like offense twice within one year next preceding, and which provides that, on such showing, he may be discharged without trial, and "his case may be placed on file," does not render the act void, or prevent a punishment for a first offense, even where such showing is made. Exceptions from superior court, Bristol county; DANIEL W. BOND, Judge. Edward Morrisey was convicted on a erwards, if the court so orders, be taken from the files, and tried in the usual way. This statute, therefore, does not undertake to interfere with the power of the court to find the defendant guilty, and sentence him, even after it is shown that he has not been twice before arrested for drunkenness within the 12 months next preceding; but in providing for the release of persons who have not frequently been found offending it authorizes and suggests the merciful and humane practice which the courts generally follow. At the same time it recognizes the fact that a person may never be prosecuted or arrested for drunkenness until the time has come for active, punitive, and reformatory measures under a sentence from the court. We are of opinion that the court is given discretion to deal with every case, in this respect, as the best interests of the defendant and the community require. We are led to this opinion partly by the peculiar disposition of cases provided for by the last part of section 5, which does not necessarily imply that they may not afterwards be taken from the files and tried, partly by the use of the word "may" instead of "shall," and partly by the preceding provisions of the chapter, all of which seem to leave a discretion to hold or release the persons arrested. If the act were construed otherwise, we should have a punishment prescribed for an offense, coupled with a provision that it should not be imposed if it appeared that the offender had not been guilty of two similar offenses within the 12 months next preceding. It would virtually be a law punishing only third offenses, on complaints charging merely first offenses, and in that respect it would be unconstitutional. Com.v. Harrington, 130 Mass. 35. The only provision of the statute which contains a limitation on the power of thecourt to punish a first offense of drunkenness in any case is that contained in section 2, which forbids the prosecution of one who has been discharged from arrest by an officer on his written statement, subsequently found to be true, that he has not been arrested for drunkenness twice before within the 12 months next preceding, or that, having been so arrested, he has been tried and acquitted in one of the cases. On the prosecution of such a person he may plead his discharge in his defense, and receive an acquittal. His case is an exception to the general rule making drunkenness punishable, and it may stand on the ground that one who has once been arrested, and, having made a true statement, has been discharged in accordance with the general policy of the law, should not besubject tofurther prosecution for the same offense. The statute is express contracts, the time of payment mentioned in them cannot be accelerated. Exceptions overruled. (157 Mass. 468) FLAGG v. REED et al. (Supreme Judicial Court of Massachusetts. Plymouth. Dec. 6, 1892.) INSOLVENCY-RECOVERY OF PROPERTY-ACTION BY ASSIGNEE AGAINST DEBTOR. Pub. St. c. 157, §§ 51, 74, 75, giving an assignee in insolvency the same right to recover the assigned estate as the debtor would have had, and providing as a remedy that, if the latter fails to do what is necessary to such recovery, he may be imprisoned, and cannot obtain his discharge, do not allow an action of contract to be brought by the assignee against the debtor for assets which have not been turned over, or any other remedy than that mentioned. Exceptions from superior court, Plymouth county; FRANKLIN G. FESSENDEN, Judge. Action by Wallace C. Flagg, assignee in insolvency of F. S. and D. L. Reed, to recover of the said F. S. and D. L. Reed money alleged to have been kept back, and not turned over by them to the assignee. There were certain rulings and refusals to rule, to which defendants excepted. Exceptions sustained. Wm. H. Brown, for plaintiff. J. J. Dowd, for defendants. KNOWLTON, J. The principal question in this case is whether an assignee in insolvency can maintain an action of con anomalous, and in some parts obscure. | tract against the debtor for property inwould at once subject him to judgments | band occupied the farm, and the buildings were In our opinion, the construction we have given it is in accordance with the purpose of the legislature. Under this construction it is constitutional, and the proceedings at the trial were correct. Exceptions overruled. Order affirmed. (157 Mass. 449) ENGLAND et al. v. ADAMS. (Supreme Judicial Court of Massachusetts. Suffolk. Dec. 3, 1892.) FRAUDULENT CONVEYANCES AFTER SECURING CREDIT-EFFECT OF, BEFORE DEBT DUE. A fraudulent conveyance of his property by a debtor, after securing credit for goods purchased, does not avoid the contract so as to entitle the creditor to recover before the debt becomes due. Exceptions from superior court, Suffolk county. Action by England and another against Adams. Defendant had judgment, and plaintiffs bring exceptions. Exceptions overruled. J. K. Berry and Berry & Upton, for plaintiffs. G. C. Abbott, for defendant. HOLMES, J. The plaintiffs are not entitled to recover in this action for goods sold upon a credit which had not expired at the date of the writ. The defendant was guilty of no fraud at the time of making the purchases. If he made a conveyance in fraud of his creditors afterwards, this would not warrant an avoidance of the contracts, and, without avoiding the cluded in the assignment, which the debtor neglects or refuses to turn over as required by law. The purpose of the statute for the settlement of estates of insolvent persons is twofold: First, to provide for an equitable distribution of their property among their creditors; and, secondly, to enable honest, unfortunate debtors to obtain a discharge from their debts. An assignee in insolvency has no rights or pow. ers in regard to theestate of the debtorex. cept those derived from the statute. Ingeneral, the assignment vests in the assignee all the property of the debtor, and gives him all the debtor's rights in regard to the collection of it. Beyond this he has the rights of creditors in regard to property fraudulently conveyed by the debtor. Pub. St. c. 157, § 46. The debtor must do everything reasonably required by the assignee to enable him to "demand, recover, and receive" all the estate and effects included in the assignment, and, if he fails to do anything so required, he cannot obtain a discharge, and may be imprisoned in the jail until he obeys such order or decree as the court may make in the premises. Pub. St. c. 157, §§ 74, 75. This is the remedy provided for the assignee if the debtor fails to turn over property in his hands. In ordinary cases the remedy is effectual to compel the delivery of everything with which the debtor can be charged on a trial in court. Besides, if the debtor in any case should prefer to endure imprisonment for an indefinitely long time rather than to deliver money in his control, his inability to obtain a discharge insured; and that soon after said demand suit was brought on the claim against the brothers, in which the farm was attached as fraudulently conveyed, and judgment recovered by plaintiff. There was evidence that the claimed consideration was little over half the value of the farm, and that, about a month after the auditor's report was filed in the attachment suit, the buildings were set on fire by defendant. Held, that it was not error to refuse to rule that demandant could not recover, though there was evidence that defendant's father purchased the farm and conveyed it to her as a gift. O'Donnell v. Hall, 28 N. E. Rep. 349, 154 Mass. 429, followed. 2. In such case it was not error to admit evidence of the filing of the auditor's report in the attachment suit, in connection with circumstances indicating that defendant knew of it. 3. The admission of the evidence tending to show that defendant set the buildings on fire, soon after the auditor's report was filed in the attachment suit, was not erroneous. in favor of as many of his creditors as might choose to sue him, and such judgments would probably be as valuable as the judgment obtained by the assignee. There is nothing in any part of the statute indicating that the assignee may sue the debtor as for a debt; indeed, an important object of the law is to leave the debtor free from debt if he does his duty, and not to permit suits against him as a part of the proceedings, whereby judgments may be recovered that will stand as new debts which are not affected by the discharge. The debtor must file a schedule of creditors, and it is in reference to claims of creditors that the proceedings are inaugurated. Nor could it have been contemplated by the legislature that the assignee should stand in the place of a new creditor, who, instead of pursuing the property and compelling the debtor under penalty of imprisonment to turn it over, may obtain a judgment which will transfer to the debtor the title to the property claimed, and leave him owing an undischarged debt, founded on a statute which was enacted for the purpose of freeing insolvent debtors from their debts. In section 51 of the statute, it is said that the assignee "shall have the like remedy to recover all the estate, debts, and effects in his own name as the debtor might have had if no assignment had been made." In this respect he is put in the place of the debtor as against third persons, but the language does not imply that he may sue the debtor in contract for assets which have not been turned over to him. Un-is whether the title of the tenant, obtained doubtedly he may take the property into his possession wherever he can find it, and it is unnecessary in this case to hold that he might not, under certain circumstances, maintain an action of replevin or some other appropriatesuit founded on his title to specific articles, even against the debtor himself. But when, as between him and the debtor, the statute particularly prescribes the duties of both, and provides the remedy if the debtor fails to do what is necessary to put the assignee in possession of the estate assigned, we can find no warrant for allowing a wholly different remedy, inconsistent with the general purpose of the act. We are of opinion that the action cannot be maintained. Exceptions sustained. (157 Mass. 463) O'DONNELL v. HALL. (Supreme Judicial Court of Massachusetts. Hampshire. Dec. 6, 1892.) FRAUDULENT CONVEYANCES-EVIDENCE-ADMISSI BILITY. 1. In an action by a purchaser at sheriff's sale to recover possession of a farm, it appeared that defendant's husband and his brother formerly owned the farm; that, two days after demand was made on them for settlement of a debt owing by them, they conveyed the land to defendant's father, who, at the same time, conveyed to her; that the parties, except defendant, went 18 miles to make the conveyances, and on the day of such demand her husband walked 16 miles to her father's to negotiate the transfer; that defendant had no money and no Exceptions from superior court, Hampshire county; JUSTIN DEWEY, Judge. Writ of entry by John B. O'Donnell against Emma E. Hall to recover posses sion of a farm. There was a verdict for demandant, and defendant excepts. Exceptions overruled. For report on former exceptions, see 28 N. E. Rep. 349. J. B. O'Donnell, for G. M. Hall. Henry W. Ely and Charles F. Ely, for tenant. KNOWLTON, J. The demandant is the purchaser of the demanded premises for a valuable consideration at a sale made on an execution against George W. Hall and Leander C. Hall, and the question at issue by a conveyance from George W. Hall and Leander C. Hall to one Stannard, and by another from Stannard to her, is fraudulent, as against the creditors of the said George W. and Leander C. The tenant asked the court to rule that on the evidence the demandant could not recover. The question involved in this request was decided adversely to the tenant, when the case was formerly before us. O'Donnell v. Hall, 154 Mass. 429, 28 N. E. Rep. 349. The evidence was sufficient to warrant the finding that the tenant took her title with a view to aid her husband, Leander C. Hall, and his brother, George W. Hall, in defrauding their creditor, Gilbert M. Hall. The only other exceptions which are not waived are to the admission in evidence of the auditor's report, and of the circumstances attending the fire which occurred on the premises. It is contended that all the evidence in regard to the fire was incompetert. In determining the question, we must consider the nature of the case. The demandant sought to prove that the conveyance to the tenant was fraudulent, and for that purpose relied solely upon circumstantial evidence. He introduced a great many circumstances, no one of which, taken by itself alone, had much tendency to prove the fraud alleged, but each of which, when taken in connection with all the others, was proper for consideration, and all of which, when taken together, amply warranted the finding that the fraud was proved. Gilbert M. Hall had a claim against his sons George W. property except an organ; that she and her hus- | and Leander C., on which he had recovered a judgment for $922.04. The tenant | the premises were set on fire by the ten was the wife of Leander C. Hall. George W.and Leander C. had a title as tenants in common to the farm on which the tenant and her husband lived. On February 17, 1888, the attorney of Gilbert M. Hall sent a letter to George and Leander demanding a settlement of the claim. This letter was handed to the tenant on Saturday, February 18th, at about 5 o'clock in the after-vious transactions, were such as to war ant, or by some one else with her knowledge and consent. This was about a month after the filing of an auditor's report in favor of the plaintiff in the suit against her husband and his property, in which the property was attached. Her relations to her husband and to his brother, and her connection with the pre noon. Its contents were made known to George and Leander. On the same even rant the jury in believing that she kept watch of the suit, and knew from them of buildings. Now, the question is whether the fact of a fire set under such circumstances might be considered by the jury in connection with all the other circumstances in the case, as bearing on the question whether the tenant was then holding under afraudulent title. Would a jury be warranted in believing that a woman who held real estate under a title fraudulent as against creditors of the former owners, who knew that it had been attached as fraudulently conveyed on a writ in favor of one of these creditors, and that an auditor's report in favor of the plaintiff had just been filed in the case, be any more likely to set fire to the buildings on the premises which were insured as her property than if she held under an indefeasible title? We are of opinion that they would, and, if so, the evidence might properly be considered in connection with the other circumstances, and the jury might say whether or not they thought it added weight to the other facts relied on to establish the claim of fraud. If the tenant knew she was holding under a fraudulent title, she might well expect to lose the property soon after the recovery of a judgment. If by burning the buildings she could obtain the value of them from the insurance company, while she held the title, she might succeed in saving to herself the proceeds of most of the property, and in leaving to the creditor little, if anything, of value above the mortgage then outstanding. If she held under an indefeasible title, she could gain nothing by the burning of the buildings, for she could in no event recover anything more than indemnity for her loss. In the one case she would have a motive to set the fire which would notexist in the other. ing Leander left the house, and walked 16 | its progress. She had insurance on the miles to the house of one Stannard, his wife's father. On Sunday after dinner he returned home with Stannard in a team belonging to Stannard. On Monday, February 20th, George, Leander, Stannard, and the tenant were together at the house, and talked about the purchase by Stannard of the farm. At about 7 o'clock in the morning of that day, Stannard, George, and Leander went 18 miles to Springfield, and made a conveyance of the farm from George and Leander to Stanpard, and another from Stannard to the tenant, and returned at 8 o'clock that night. Leander went to Northampton by the first train the next morning, and had the deed to Stannard recorded. The deed from Stannard to the tenant, although bearing the same date as the other, was not recorded until March 10th, for the reason, as Stannard and the tenant testified, that Stannard took it home with him to Blandford to get it signed by his wife. Gilbert M. Hall brought a suit on his claim against George and Leander on April 6, | 1888, and attached the premises as fraudulently conveyed to the tenant. There was a mortgage on a small portion of the premises when George and Leander took their title, which has not been paid. The parties testified that the deeds made on February 20, 1888, were for a valuable and adequate consideration. The consideration mentioned in each of the deeds was $1,300, and there was evidence that the premises were then worth from $2,100 to $2,500. Stannard testified that he had in his house $500 of the $1,300 which he paid, and that it had been accumulating one and a half or two years, and that he got the balance of the $1,300 from his sister, who was somewhere in the state of New York, but whose address or residence he did not know. He also said that he owned a farm in Blandford and a part of two other farms. A mortgage was put in evidence from Stannard to one Church, duly recorded and undischarged, dated March 16, 1886, in which he promised to pay the mortgagee the sum of $800; $100 to be paid on May 1, 1886, $100 on July 1, 1887, and $200 on each 1st of July following, until the whole was paid, with interest annually. Stannard testified that he had no money with which to pay this sum when the mortgage was given, but made the payments on or before the times when each became due. At the time of and before the delivery of the deed to the tenant, she had no money or other property but an organ. The tenant and said Leander The fact that considerable time had elapsed between the delivery of her deed and the fire is immaterial, for there had been nochange in her title, except from the effect of the attachment, and the question whether she was holding under a fraudulent title at the time of the fire is the same as the question whether the conveyance to her was fraudulent as against creditors of the grantors when it was made. It is manifest that the evidence excepted to could not be used for the purpose of inducing the jury to believe that the tenant committed a fraud in taking her title, on the ground that one who commits one crime or fraud would be more likely than ordinary persons to commit another, and the grounds which we have been considering have no relation to this. It was compejust been filed, in connection with circumstances indicating that she knew it, for continued to live on the farm after the content to show that the auditor's report had veyances. The evidence excepted to tended strongly to show that the buildings on that seemed to bring the plaintiff one step | by Pub. St. c. 124, § 13, or barred by Id. § nearer the enforcement of his claim by a sale of the property before it passed from her. We are of opinion that all these circumstances are proper for the consideration of the jury, not because each taken by itself alone had much, if any, tendency to show fraud, but because, in connection with all the others, they might well be thought by the jury to strengthen the demandant's case. If all the other evidence left the question evenly balanced in the minds of the jury, they might well think her burning her barn and attempting to burn her house, under such circumstances, were more consistent with a belief on her part that her title was bad than with a belief that it was good. It was her own conduct, and, so far as it tended to throw light on her relation to the property, it was proper to be considered. It might have turned the scale in favor of the demandant. Exceptions overruled. (157 Mass. 499) HASTINGS v. MACE. (Supreme Judicial Court of Massachusetts. Pub. St. c. 124, § 13, provides that, where a widow is entitled to an interest in land of which her husband has died seised, she may, without having her interest assigned, occupy the land with the heirs, or receive her share of the rents and profits, so long as the heirs do not object; and that, whenever they deem it proper to occupy their shares in severalty, the widow may claim and have her interest assigned. Section 14 provides that a widow shall not be entitled "to make claim" for any interest in her husband's land, or commence any action "for the recovery thereof," unless within 20 years of the husband's death. Held, that section 14 does not apply where a widow has claimed and occupied, without objection, for 20 years, but only where claim is made for the first time. Report from supreme judicial court, Essex County; OLIVER WENDELL HOLMES, Jr., Judge. This was a petition by Elizabeth Mace for assignment of dower in the estate of her former husband, Francis Mayo. There was also a petition by Ida F. Garland against Nellie G. Mayo, both children of the said Mayo, for partition. The court decreed an assignment of dower, from which this appeal by Margaret S. Hastings, a subsequent grantee of Nellie G. Mayo. The case is now reported for consideration of the full court. Affirmed. M. J. McNeirny, for plaintiff. Sumner A. York and Chas. A. Russell, for defendant. BARKER, J. Francis Mayo died on October 17, 1863, and his widow, now Elizabeth Mace, became entitled to dower in the land in which she asks to have dower assigned. She occupied the land with the heirs, and received the rents, the heirs not objecting, until August or September, 1890, since which time the rents have been, against her protest, paid to one of the heirs. Her petition was filed on August 15, 1891. The question reserved is whether her right to file the petition more than 20 years after her husband's death is saved 14.1 So far as it affects this question, Pub. St. c. 124, § 14, is identical with Gen. St. c. 90, § 6, from which it purports to have been derived; and that section was taken from St. 1858, c. 56. Before the passage of St. 1858, c. 56, a widow's right to dower was not subject to any statute of limitations. Parker v. Obear, 7 Metc. (Mass.) 24. Pub. St. c. 124, § 13, so far as it affects dower, is of the same effect as Gen. St. c. 90, § 7, from which it purports to be derived, and the latter section is substantially identical with Rev. St. c. 60, § 6. This section was derived from St. 1816, c. 84, with, as the commissioners who drafted the Revised Statutes say in their note, "some change of the language to make it express more clearly the intention of the legislature, as understood by the court." St. 1816, c. 84, was considered in the cases of Gibson v. Crehore, 3 Pick. 475, and Gibson v. Crehore, 5 Pick. 146. By its terms a widow was entitled to have and receive one undivided net third of the rents, incomes, and profits of the estate of which her husband died seised, until her dower should be actually assigned and set out to her by the heir or by a court. In Gibson v. Crehore, 3 Pick. 475, a widow sued in assumpsit to recover one third of the rents and profits received by one who at an administrator's sale had purchased lands subject to a mortgage. Owing to the mortgage, she could not enforce her dower at law, and no construction of the statute was necessary; but the court said that there was reason to believe "that this new remedy was intended only to be applied against the heirs of the deceased," and that it was "doubtful whether an action of assumpsit was intended to be given." In the second case; (Gibson v. Crehore, 5 Pick. 145,) which was a bill in equity between the same parties, the court say that the language of the statute "is rather obscure, but its meaning seems to be to enlarge the widow's claim on the heirs, but not to affect the rights of bona fide purchasers. With the alterations made by the commissioners who prepared the Revised Statutes, the provision, as it appears there and in the General Statutes, seems clear; and we know of no reason why the language used in the corresponding provision of Pub. St. 1Sec. 13. When a widow is entitled to an interest in lands of which her husband died seized, she may, without having her interest assigned, continue to occupy such lands with the heirs or devisees of the deceased, or to receive her share of the rents, issues, or profits thereof, so long as such heirs or devisees do not object thereto; and whenever the heirs or devisees, or any of them, deem it proper to hold or occupy their share in severalty, the widow may claim her interest, and shall have the same assigned to her according to law. Sec. 14. No widow shall be entitled to make claim for an interest in her husband's real estate, or to commence an action or other proceeding for the recovery thereof, unless such claim or action is made or commenced within twenty years after the decease of the husband, except that if at the time of the husband's decease the widow is absent from the commonwealth, under twenty-one years of age, insane, or imprisoned, she may make such claim or commence such action or proceeding at any time within twenty years after such disability ceases.' 99 |