35 A. 943 | N.H. | 1893
By the common law of this state an insolvent debtor might assign his property to trustees for conversion into money, for distribution with or without preference among those of his creditors who assented to the assignment, upon condition that he should be discharged from their claims. Haven v. Richardson,
By the act of July 9, 1862 (Laws 1862, c. 2594), it was provided that the assent of creditors to an assignment should be presumed unless the contrary intent was manifested to the assignee within thirty days after they were notified of the assignment, and that the actions of assenting creditors should be discontinued. See Fellows v. Greenleaf,
All the acts referred to were revised upon the enactment of the General statutes in 1867, and incorporated into c. 126. Section 4 of this chapter requires that the schedule of assets shall contain a statement of the estimated value of the property embraced in the assignment and of the incumbrances upon it, and that the list of creditors shall contain a statement of the amount and nature of their respective claims in addition to the particulars required by s. 1 of the act of 1861. Section 8 provides that if the assignee shall fail to file a schedule of property and list of creditors in ten days, or a bond in five days, or within such further time as the judge may allow, he shall cease to be assignee; and s. 9 provides that whenever a vacancy shall occur in the office of assignee from any cause, the judge shall appoint another upon application of the debtor or any creditor. Failure on the part of the assignee to perform his duty is remedied, not by avoiding the assignment and depriving the debtor and creditors of their rights under it, hut by substituting for the delinquent an assignee who will perform the duties of the office.
The law thus far was distinctively an insolvency law. Rochester Savings Bank v. Chick,
The provision (s. 8) for filing a schedule of assets and a list of creditors is as follows: "The debtor shall, within ten days after the beginning of the proceedings, make, on oath, and file in the office of the register, a schedule of his creditors, stating the place of residence of each, if known, the amount due each, the nature of each debt, the true consideration thereof, and any security given for its payment, and a schedule of all his estate, giving its location and description, and the nature of all incumbrances thereon, with the date, amount, and consideration of each. If, by mistake, accident, or misfortune, the schedules are not furnished within the time above limited, they shall be delivered as soon as may be thereafter, and before the first meeting of the creditors." The object of this section was not to obtain information for notifying creditors of the pendency of the proceedings: that is provided for in s. 6; — it was not to secure an inventory of the debtor's estate: that is provided for in s. 25; — the provisions of the section are not relied upon for discovering fraud: special and ample provisions for that purpose are made in other parts of the law (ss. 15, 19, 26, 27, 40); — but their office, like that of the provisions of s. 7 of the act of 1861, is to secure for the assignee and other parties in interest true information concerning the condition of the estate. They are supplemented, at least in involuntary proceedings, by s. 50, which provides that the debtor shall be punished if he wilfully omits to furnish the information, or fraudulently furnishes false information. They are incidental rather than essential provisions. Non-compliance with them does not render it impossible to carry into effect the purpose of the law. The assignee and creditors can get the information from other sources, or from the debtor himself, with the aid of s. 27, which provides that the debtor, *579 when required, shall submit to examination on oath, by the assignee or any creditor, "touching any matter which may affect the settlement of his estate in insolvency." There is no provision that a failure to comply with the requirements of the section shall make the assignment invalid and discontinue the proceedings. The modifications of the law, effected by the acts of 1885, 1889, and 1891, do not lessen the weight of this negative evidence. A result of such vital consequence to the debtor, and especially to the creditors, in a bankruptcy proceeding would not be left to inference.
The purpose of the law is "the distribution of the debtor's property proportionately among his creditors, and the discharge. of the debtor from further payment, if he shall bring himself within the conditions prescribed for obtaining it." Batchelder v. Batchelder,
Exception sustained: decree of probate court reversed.
CARPENTER, J., did not sit: the others concurred.