Jewett v. Rines , 39 Me. 9 ( 1854 )

TbNNEV, J.

— This case is presented on exceptions to the rulings, and to the instructions of the Judge to the jury, and to the refusal to give instructions as requested by the defendants.

The disclosure of the debtor was properly admitted in evidence. The statute, c. 148, § 26, provides, that the creditor may, upon examination before the justices, propose to the debtor any interrogatories, pertinent to the inquiry, and they shall, if required by the creditor, be proposed and answered in writing, and the answers shall be signed and sworn to by the debtor, and the creditor may have a copy of the interrogatories and answers certified by the justices, on payment therefor. If there is any omission of acts of the debtor, or of the justices, in the examination and proceedings, essential to the rights of the creditor, so that he fails to be benefited by the property disclosed, upon which he has a lien, by the statute, a breach of the bond will take place. Harding v. Butler, 21 Maine, 191. And in order to ascertain, whether there have been such omissions, the disclosure becomes important, and was manifestly designed to be used in a suit upon the bond, if it should be deemed expedient by those interested.

By the disclosure, the debtor had in his hands the sum of six dollars in money, certain notes of hand, and personal chattels. The record shows, that the debtor paid this money to the justices; and it is perfectly evident that it was treated by him and by them as his property, when disclosed. The proof offered, that he stated this money to be that of another, and that the justices omitted to have that statement appear in the disclosure, was wholly inadmissible. Such proof would not become a part of the disclosure signed and verified by the oath of the debtor at the time required, and would be contradictory to the import of that which was signed and authenticated, according to the provisions of the statute, and upon which the judgment of the tribunal, in allowing him to take the oath, was predicated. And it would be repugnant to well settled principles, to allow the statement of the debtor, thus solemnly made, and acted upon, to be contradicted, controlled or explained, by the evidence offered, to avoid the consequences of what was previously done or omitted.

The creditor’s attorney is not prohibited by the statute from writing the debtor’s answers to the creditor’s interrogatories. And there is no limit during the examination, beyond which the creditor cannot proceed to reduce to writing the interrogatories and answers, where no objection is interposed, but the request is granted.

The disclosure shows, whether the debtor had property of any kind, to which the creditor could resort for the satisfaction of his execution, in any of the modes provided by the statute. And if the justices adjudged such property not subject to the creditor’s lien; or omitted to do that which was required in order to make it available to the creditor, when by the disclosure it was clearly liable to be taken on execution, such adjudication is not conclusive, but is subject to revision in a suit upon the bond. Butman v. Holbrook, 27 Maine, 419.

Neither the disclosure, nor the justices’ record show, that the six dollars in money, disclosed, was- deposited with the magistrates, to be disposed of like other personal property, which it appeared by the debtor’s statements that he had; but it was withdrawn from the articles disclosed, and paid to them, as is shown by the terms used, and on the authority just cited, was a breach of the bond, and the certificate is avoided.

The record declares, thajb the magistrates did not appraise any bank bills, notes, accounts, bonds or other contracts belonging to the debtor, and disclosed by him. Notes were shown to be owned by the debtor, and the omission to have them appraised was a breach of the bond. Harding v. Butler, before cited. If upon their face, they appeared barred by the statute of limitations, a new promise might have been shown, if the creditor could have been heard on the appraisal as he was entitled to be. Wingate v. Leeman, 21 Maine, 194. The case does not find, that the justices adjudged them to be worthless, as is assumed by the defendants in their request for instructions, and nothing was done which was inconsistent with the record, that they were not appraised; but on the other hand, a record was made, that the creditor shoixld have a lien thereon for thirty days, though there was no such assignment as the statute requires, c. 148, § 30, and when they were demanded by the officer, who had the alias execution, were not delivered.

The bond having been broken, it is difficult to perceive in what manner the taking of property disclosed, kept, and afterwards delivered to the officer and sold for a sum less than the amount of the execution, can cure the omissions and the irregularity of the proceedings, which constituted the breach of the bond. This was in nowise prejudicial to the rights of the debtor.

A demand of the money disclosed would have been useless, when by the debtor’s disclosure and the magistrates’ record, it was paid away before the oath was taken, and it was not treated by him or by them as property on which a lien was expected.

The instructions in relation to the damages were quite as favorable as the defendants were entitled to.

Exceptions overruled.

Shepley, C. J., and Howard and Hathaway, J. J., concurred.