Hutchinson v. Brown

| Wis. | Jun 15, 1873

Dixon, C. J.

The validity of the assignment is attached on the ground that the bond executed and delivered by the as-signee did not conform to the requirements of the statute. Laws of 1858, ch. 64, sec. 1; R. S., ch. 63; Tay. Stats., 843, § 1. The statute requires “ a bond in such sum not less than the whole amount of the nominal value of the assets of such assignor, which value shall be ascertained by the oath of one or more witnesses and of the assignor;” and the objection taken is, that the bond was not given in that sum. The value of the assets, as ascertained by the oath of the assignor and one witness, was $7,000, and the bond was given for that sum. The assignor made oath that such was “the value of all the property this day assigned,” and the witness, that the same was “ the whole and full value of said property.” The point of the objection is, that the value as thus ascertained was the real instead of the nominal value of the assets, and that bond was given for that sum instead of for the nominal value. The objection thus taken savors very strongly of nicety, and an over-scrupulous regard for literal statutory construction. Precisely what the legislature intended by the words “nominal value,” or whether anything substantially different from the real or true value was meant, is not perhaps easy to say. It is, however, easy to observe, and the truth of the observation will be readily perceived, that a 'bond given in a sum equal to the full value of the assets, or all that they are worth, or that may be expected to be received or realized from the sale and conversion of them into money by the assignee, will satisfy the real object the legislature had in view, and accomplish the substantial purpose of the enactment. Such a bond was given in this case. The sum equaled, indeed exceeded, as the course of subsequent events showed, the full actual value of all the assets or property of the assignor which came to the hands of the assignee. Such being the facts, we are wholly disinclined to hold the bond insufficient or the assignment void because the value fixed by the witnesses was not stated by them to have been the “ nominal value,” in the words of the statute, in place of the full value as expressed in their affidavits. Protection to the creditors being the great and only object aimed at by. the statute, and that object being fully attained, we cannot pronounce the bond insufficient. If need be we should say, and such we are disposed to look upon as the true construction, that the “ nominal value” of the statute is the value named by the witnesses, and that a bond given in the full value or real value, as ascertained in the manner prescribed by the statute, will in all cases be sufficient.

Objection is also taken to the affidavits of the sureties, who, it is said, did not justify their responsibility on oath in a manner legally to satisfy the officer taking the bond. The statute does not require a justification in form, as in other cases. The language is, “ who shall each testify as to his responsibility, and by their several affidavits satisfy the officer taking such bond, that the property of such sureties (being within this state) is worth in the aggregate the sum specified therein.” The officer certified his satisfaction in writing upon the bond, and the affidavits of the sureties were in compliance with the requirements of the statute. It is the officer who is to be satisfied ; and his certificate being obtained in the manner prescribed by the statute, the bond is in this respect valid, unless fraud or imposition is shown. It must be presumed in favor of the action of the officer, that the responsibility of the sureties was sufficiently testified and made known before the making of his indorsement; and it must also be presumed, though the statute does not in terms require it, nor that the facts shall be stated in the affidavits, that it was shown, or that the officer was satisfied, that the property of the sureties was such as was not hy law exempt from forced sale on execution, and that the sureties owned and possessed the same over and above all their just debts and liabilities.

The objection that the officer did not state in his certificate that the indorsement by the assignee upon the copy of the assignment, of his consent to accept the trust specified in the original instrument, was made before the delivery of such copy to the officer, is without the least weight or significance, in our minds. The statute does not require the officer thus to certify, and the only rational inference which can be drawn is, that the indorsement was made before delivering the copy, because the assignee would have no opportunity to make it afterwards, and because otherwise the officer could not have made his certificate.

■ And the objection, also, that one of the witnesses to ascertain the value of the assets made oath to the same “ in his opinion and belief,” cannot prevail. The value of property is not a matter or fact to be sworn to positively, but only to be stated upon opinion or belief. Some courts exclude such testimony altogether, holding it to be a question upon which the opinions of witnesses are not to be received. Others, and among them this court, hold the opposite rule, and that such opinions of witnesses shown to be competent are admissible. It can not invalidate the testimony, which is at most but matter of opinion and belief on the part of the witness, that he so expressly states it.

These views, we believe, sufficiently dispose of the present case, and render a consideration of the othér questions unnecessary.

By the Court. — Judgment affirmed.