Ledden v. Hanson , 39 Me. 355 ( 1855 )

TbnNET, J.

— The errors assigned in the petition are 1st, That in the disclosure and examination before the justices of the peace and quorum the creditor was restrained in his just rights in propounding interrogatories, under the statute, &c. 2. That the debtor was excused from answei’-ing interrogatories proposed, touching his ownership of property, prior to the time, when the debt, on which he was arrested, was contracted; — and 3, That upon the disclosure as made, he was improperly allowed to take the poor debtor’s oath as prescribed in B.. S., c. 148, § 28.

Several preliminary questions were presented by the respondents. One was, whether the Court have jurisdiction of the petition; and another was whether the magistrates, who administered the oath to the debtor are subject to the writ of certiorari to bring up their records, inasmuch as they are not required by statute to make records of their proceedings. These questions have been elaborately discussed by the respondent’s counsel in argument, but we think it unnecessary to decide them, as we think there is no authority to grant the writ prayed for upon this petition, upon the hypothesis, that in a proper case,’ it may be granted to magistrates, who have examined a poor debtor, and permitted him to take the oath.

1. The assignment of the first error is very general, and is supposed to have been more specifically stated in those which follow.

2. The oath for poor debtors prescribed by the statutes of 1822, c. 219, § 15, of 1831, c. 520, § 4, of 1835, c. 195, § 10, and of 1836, c. 245, § 7, contains substantially the fol-owing, to wit, “ That I have not since the commencement of this suit against me, or at any other time, directly or indirectly, sold, loaned, leased, or otherwise disposed of, or conveyed or entrusted, to any person or persons, whomsoever, all or any part of the estate, real or personal, whereof I have been possessed, or been the lawful owner with any intent or design, to secure the same, or to receive, or to expect any profit, gift, remuneration, or advantage therefor personally, or that all or any of my family, heirs or friends, should receive or expect any profit, advantage or benefit therefrom, with an intent or design, that any of my creditors should be defrauded.” In the R. S., c. 148, § 28, the form in reference to the disposition of his property is changed, so that he is required to state, “ That I have not, since the commencement of this suit, or the time when the debt, or cause of action, or any part thereof, on which this suit was brought, was contracted by me, directly or indirectly sold, loaned, leased or otherwise disposed of, or conveyed or entrusted to any person,” &c.

By § 20, of c. 148, the bond to bo taken upon arrest or imprisonment, is conditioned, that the debtor will within six months thereafter, cite the creditor, &c., and submit himself to examination, and take the oath prescribed in the 28th section, &c. The justices of the peace and quorum, before whom he shall appear, according to the citation and the provisions of the statute, shall examine the debtor, under his oath, concerning his estate and effects, and the disposal thereof, and his ability to pay the debt for which he is committed, &c. By § 21, the creditor may propose to the debtor any interrogatories pertinent to the inquiry, which with the answers, if required by the creditor, shall bo in writing, and the answers are to be sworn to, after being signed by the debtor. If, upon such examination, &c., the justices of the peace and quorum shall be satisfied, that the debtor’s disclosure is true, and shall not discover any thing thereby inconsistent with his taking the oath, set forth in the next section, they may proceed to administer the same accordingly.

It is quite apparent from the foregoing citations from R. S., c. 148, that the examination required, is designed for the purpose of enabling the magistrates to determine, whether the oath prescribed, can be permitted to be taken by the debtor; and also to secure to the creditor, by means of the arrest, imprisonment or bond, such a disclosure as will present the pecuniary condition of the debtor, and the history of the property, which he may have owned since the debt was contracted, and the disposal of the same so far as it may have been disposed of, and that of which he may still be the owner, and of which he may have the control. All that the debtor is required to do, is to satisfy the magistrates, that the disclosure he may make is true, and is not inconsistent with the form of oath prescribed, and he is entitled to the discharge of his body, and the condition of the bond is saved. The property, which he purchased, or owned, and the disposal of the same, before the origin of the debt, which was the cause of his arrest "and imprisonment, whatever may have been his conduct, or intentions in reference thereto, is not made in any degree the test of his right to take the oath, and cannot be the subject of inquiry pertinent to the question before the justices of the peace and quorum.

It is true, if a person commits an actual fraud as against his creditors, in the disposal of his property, those becoming his creditors subsequently as well as those existing at the time, may take advantage of it, and the property, so fraudulently conveyed, may be made subject to their debts. But it appears, that the Legislature, in the Revised Statutes, did not intend to give magistrates, in proceedings, when there should be an attempt to take the poor debtor’s oath before them, jurisdiction over such matters, so that they should possess the power to deprive a debtor of his liberty perpetually, (if he should be unable to pay,) on account of a fraud upon creditors, before he contracted the debt, on which he may make disclosure; or if he gave bond according to the statute to free himself from arrest or imprisonment, compel his sureties thereon to discharge the judgment and costs. The opinion of the Court, in the case of Little v. Cochrane & al., 24 Maine, 509, treats the inquiry to be made of tlie debtor in the disclosure as limited to transactions, which occurred at the time the debt was contracted and afterwards.

3. AVhether the facts disclosed by the debtor in this case were true, and if so, whether they were consistent with the oath, were questions submitted by the statute entirely to the judgment of the magistrates, and their decision upon them cannot be revised by this Court. Haywood, petitioner, &., 10 Pick. 358.

Writ denied, costs for the respondents.