Boston & Maine Railroad v. Salmon Falls Bank

| Superior Court of New Hampshire | Dec 15, 1853

Eastman, J.

The statute provides four methods in which the disclosure of a trustee may be taken. It may be done in open court, or before some justice of the peace, if the parties agree, or before a commissioner, and in certain cases before a justice of the peace, upon application therefor. Com. Stat. ch. 221, §§ 7, 25, 26, 27.

Where the disclosure is taken in court, the provision is as follows § 7. Every person summoned as trustee, as aforesaid, may be put to answer interrogatories as to his liability as such trustee, which interrogatories and answers shall be in writing, and subscribed and sworn to in open court.

If taken before a commissioner, the provision is this : § 25. Upon the motion of either party, the court may appoint a commissioner to take the disclosure of any trustee, and if upon due notice such trustee shall neglect or refuse to appear before such commissioner, or to answer all proper interrogatories, on oath, the commissioner shall report such neglect or refusal to the court, who may thereupon enter judgment against such trustee, as upon default, or order such further proceedings, and upon such terms as may be just and reasonable.

When the disclosure is taken at court, the practice is for the plaintiff to put his interrogatories in writing, and pass them to the trustee, and for the trustee, after having examined them sufficiently, to draw his answers. This examination is made in the court house, or in the trustee’s room, or some other convenient place, either with or without counsel, as the trustee maychoose, and the answers are reduced to writing by the trustee himself, or by some one whom he may request to do it for him. After the disclosure is completed, it is subscribed and sworn to in open court. If any questions of controversy arise during the taking of the disclosure, they are brought before the court and decided.

In the examination of the interrogatories and the framing of answers the trustee is entitled to the assistance of counsel, if he desires it, as much as in drawing a plea to a declaration. A trustee is not like a witness testifying between parties. He is a party himself, and his interests and rights are oftentimes deeply affected by his answers. There are instances, also, in which it requires legal skill to draw an answer properly and truthfully. Answers might be given without the aid of counsel, which would be unintentionally untrue; and the rights of the trustee might be sacrificed, should he, if illiterate, undertake to give his answers unaided by counsel. He might, also, jeopardize his liberty ; for false swearing in the giving of a disclosure by a trustee is perjury, and punishable accordingly.

If the trustee should unnecessarily delay his answers, or equivocate in giving them, the court will make such order as the circumstances may require.

A commissioner is usually appointed for the accommodation of the parties and to save expense ; and in taking the disclosure, we know of no reason why the practice before Mm should not conform, as near as may be, to that of the court. When notified to appear before the commissioner, the trustee should be present at the time and place designated, either with or without counsel, as he may elect, and upon interrogatories being put, he should have the privilege of examining them before answering, either by himself or with the aid of counsel, and either in the presence of the commissioner or in some other near and convenient place, and reduce his answers to writing as soon as may be. The answers may be written by the commissioner, if the trustee desire it, or by himself, or by some one whom he may request to do it for him.

If questions arise during the taking of the disclosure, the commissioner must decide them according to his best judgment, or reserve them “for the court. If the trustee should unnecessarily delay his answers, the commissioner can fix the time during which he shall answer, and in case of his neglect to comply with the order, may return the commission to the court, with his report of the facts, for their action thereon.

In accordance with these views, this report should be recommitted, with instructions for the commissioner to proceed and fake the disclosure of the trustees, by questions propounded to them, and by answers furnished in writing by the trustees, drawn up by themselves, or by some one for them, in the presence of the commissioner, or elsewhere, in some near and convenient place, at the option of the trustees.

We discover no good reason for discharging the commissioner. He has not been in fault. The trustees ought to have appeared with Mr. Kingman at the office of Mr. Wiggins, but beyond that, they were not obliged to pursue the course desired by the plaintiff. They were not witnesses giving their depositions, but parties making their own answers.

Report recommitted.