130 Mass. 465 | Mass. | 1881
This indictment is on the Gen. Sts. e. 118, § 106, which provides that, “ if a debtor, after notice of the filing of a petition by or against him, secretes or conceals any property belonging to his estate,” he is punishable “ by imprisonment in the state prison not exceeding five years, or in the jail not exceeding two years.”
Section 104 of the same chapter provides that “the judge, after notice of the petition given to the debtor by a copy thereof served upon him personally or left at his last and usual place of abode, and a hearing,” “ shall forthwith issue his warrant to take possession of the estate of the debtor.”
The exact question in this case is whether the notice referred to in § 106 is the notice which the statute requires the judge to give to the debtor, or is it simply knowledge of the fact acquired in some other mode by the debtor. The presiding judge
This instruction was erroneous. The notice 'which the debtor must have is a notice from the judge to him. The statute is highly penal, and the act committed by the party is made a felony. It is undoubtedly true that civil rights may sometimes be affected by information derived from other than official sources. Commonly, however, such results follow only when the official notice is constructive, instead of knowledge derived from personal service of notice; as, information of an unrecorded deed. But, even to affect civil rights, information derived aliunde is not always equivalent to a service of notice required by law. Clarke v. Minot, 4 Met. 346, 350. In re Brown's trusts, L. R. 5 Eq. 88.
It is not necessary in this case to determine whether any informality or irregularity, either in form or substance, in the notice issued by the judge to the debtor, would vitiate the notice. Such defect might be so gross as that the whole proceeding would be treated as a nullity, or the informality might be so slight as to require scrupulous attention to discover it. What we decide is, that the notice referred to in the statute is the notice which the statute requires to be given by the judge to the debtor, and, until such notice is given, no liability under this clause of the statute can attach.
It is not an answer to this to say that under some circumstances the purposes of the statute may be defeated. If a creditor should say to a debtor, “ If you do not discharge this debt, I will file a petition against you in insolvency at twelve o’clock to-day,” and he does not discharge the debt, and the creditor does file the petition, it could not be contended that the debtor had notice of the filing of the petition. He would, however, or might, have reasonable cause to believe that the petition had been filed; and a reasonable cause to believe the existence of a fact is commonly equivalent to knowledge of the fact. It is apparent, therefore, that if the word “notice” is to be construed as “ information ” in whatever mode obtained, parties might in nocently be subjected to great peril. The phrase “ actual knowledge ” in the instructions of the court was understood, both by
In this view, it is not necessary to call to our aid those old, familiar and well-established rules of construction which require statutes highly penal to be construed strictly; and that, in the creation of new offences, and especially of felonies, all the elements of the offence must be carefully alleged and „ exactly proved; and that, in those cases in which a guilty knowledge is an element, the scienter must be both alleged and proved, and, though alleged with an unnecessary particularity and minuteness, must be proved with the same particularity and minuteness.
Exceptions sustained.