| NY | Jul 5, 1851
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *108
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *109
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *110
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *111 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *113 The matters returned to the certiorari, and the objections made to those matters, may be divided into three classes. Thefirst class to include that part of the proceedings necessary to give the recorder power or jurisdiction to hear and determine the application proposed to be submitted to him. The second to include the decisions of the recorder upon questions of law which arose in the course of the proceedings before him, after he assumed jurisdiction; and the third, the recorder's final decision on the merits. According to the view which I have taken of the case, it is unnecessary to consider the second and third classes of objections; or to *115 inquire whether they are properly brought up for review by a common law certiorari.
The first objection to the jurisdiction of the recorder, is founded on a supposed defect in the proof of the service of a copy of the petition, account and inventory, with the nature of the time and place at which, and the officer to whom they were to be presented. The 14th section of the act under which these proceedings were had, required that these papers should be personally served on the plaintiff, by whom the defendant should be prosecuted, or his attorney, c., fourteen days previous to the presentation of the petition to the officer. But as Harlowappeared before the recorder, at the presentation of the petition, and made no complaint as to the time or manner of the service, but only to the proof of it, this point was unimportant, and I shall assume that the service was duly made, without reference to the pretended defects in the proof. The most serious objections to the jurisdiction of the recorder, are those which relate to the matters of the petition and the papers connected with it. It is claimed that they do not make a case which entitled the petitioner to the benefit prayed for, nor one which the recorder was authorized to hear and decide. The investigation of these questions may require a recurrence to the act of 1831, "to abolish imprisonment for "debt and to punish fraudulent debtors." The great and leading objects of that act were, to abolish imprisonment for debt, and to provide more summary and stringent means than then existed, for a certain class of creditors, who could and chose to resort to them, to coerce the application of their debtors' property, legal and equitable, to the payment of their debts. It did not repeal any of the then existing statutes on the subjects of insolvent debtors; the assignment of their property, or the exemption of their persons from imprisonment. On the contrary, it contemplated their continuance, and referred to and adopted some of the provisions contained in them. The several statutes on these subjects, although passed at different times, were all included in chapter fifth, title first *116 of the second part of the Revised Statutes of 1830, in which they are arranged under distinct articles, and several of them are so referred to in the act of 1831. By the first section of the act of 1831, arrest and imprisonment on any civil process, in any suit or proceeding for the recovery of any money, due upon any judgment or decree, founded on a contract, or due upon anycontract; or for the recovery of any damages for the non-performance of a contract, are abolished, except on certain contracts mentioned in the second section. By the 3d and 4th sections, any creditor who has obtained a judgment, or commenced a suit against his debtor, in a court of record, for a cause of action for which he cannot by the provisions of the act arrest or imprison him, may obtain a warrant for his arrest from a judge, or other officer therein mentioned, upon establishing, in the way provided, one or more of several specified particulars tending to show fraud in the debtor, in contracting the debt, or actual or intended fraud in removing, concealing, or assigning his property, with intent to defraud his creditors, or in refusing to apply certain property, not then liable to execution, to the payment of any judgment or decree against him. If, upon the debtor's being brought before the officer on the warrant, and examined in the way pointed out by the statute, the allegations against him are established to the officer's satisfaction, he may commit the debtor to the county jail, unless he do one of five specified things, mentioned in the 10th section of the act; the fourth of which is, enter into a bond to the complainant, with sureties, c., conditioned that he will, within thirty days, apply for an assignment of all his property, and for a discharge as provided in the subsequent sections of the act, and diligently prosecute the same until he obtain such discharge.
By the 12th section of the act, any person committed as above provided; or who shall have given the bond specified in the 4th subdivision of the 10th section of the act; or against whom any suit shall have been commenced in a court of record, in which he cannot, by the provisions of the act, be *117 arrested or imprisoned, may present a petition to the proper officer, praying that his property may be assigned, and that he may have the benefit of the provisions of the act. The statute does not itself, or by reference to any other statute, or proceeding, prescribe the form or substance of the petition, except the prayer; but it will not be claimed that the prayer alone is sufficient; that the petitioner is entitled to the benefits prayed for, by merely asking for them. The petition must show a case of which the officer to whom it is presented has jurisdiction, and which if true would entitle the petitioner to the things prayed for from the officer. Although the 12th section gives the right of petitioning to three classes or descriptions of debtors, to wit, to those who have been committed; to those who have given the bond to avoid commitment; and to those who have had suits of a certain description commenced against them; yet in one important respect their conditions are alike; they must all be debtors who have been proceeded against for the collection of a debt or demand, arising on contract, for which they could not be arrested or imprisoned, according to the provisions of the statute under which they claim the right to petition. The statute relates to no other judgments or suits, and the officer has jurisdiction in no other cases. The petition should therefore show affirmatively and clearly, that the judgment or suit from which the petitioner seeks to be discharged, is one of that description. The petitioner in this case stated in substance, that a suit had been commenced against him in a court of record, in which by the provisions of the act to abolish imprisonment for debt, c. — he could not be arrested or imprisoned, and therefore prayed that his property might be assigned, and that he might have the benefit of the said act,c.; and further set forth and stated that the suit was brought by John Harlow, in the superior court of the city of New York prior to the first of May, 1843, for the sum of $4,000, and upwards. That by virtue of a warrant issued by Aaron Vanderpoel, Esq., one of the justices of the said court, on the application and *118 affidavit of John Harlow, he, the petitioner, was arrested, and after further proceedings in the premises, thereafter, on the 4th day of September instant, executed a bond with sureties to the said John Harlow, pursuant to the provisions contained in the 4th subdivision of the 10th section of the said act. This petition did not show the nature of the suit commenced by Harlow against the petitioner. It stated that it was brought for the sum of $4,000, and upwards; but did not state what that demand was for; for aught that appears it might have been, for an assault and battery, a slander, or the breach of one of the contracts mentioned in the second section of the act. This defect is not helped by the subsequent mention of the warrant issued by Judge Vanderpoel, because it is not shown what that warrant was for, nor that there was any connexion between it and the suit, except that they were both prosecuted by Harlow. The petition did not show the nature of the proceedings before Judge Vanderpoel, upon the return of the warrant, nor any decision of his thereupon, from which it can be seen what the subject or matter before him was. Such a petition was insufficient to give the Recorder jurisdiction of the matter attempted to be presented to him. (5Hill, R. 330, 6 id. 311.) I think that the recorder's decision made on the 16th day of October to assume jurisdiction of the matter presented to him, was clearly wrong, and that that error was not cured by the subsequent amendment of the petition, on the 17th.
I am also of opinion that the account and inventory presented with the petition, was defective and insufficient to authorize the Recorder to receive and act upon the petition. The 13th section of the act under which those proceedings were attempted to be had requires, that on presenting the petition, the defendant shall deliver an account of his creditors, and an inventory of his estate, similar in all respects to the account and inventory required of the debtor by the sixth article of title first and chapter fifth of the second part of the Revised Statutes; and shall annex to the said petition, account *119 and inventory, an affidavit, similar in all respects to the oath, required by the fifth section of the sixth article of theaforesaid title and chapter. The sixth article referred to, relates to voluntary assignments by a debtor imprisoned in execution in civil causes; and after providing for the petition to be presented by such debtor, requires that such petition shall have annexed to it, a just and true account of all his estate, real and personal, in law and equity, and all charges affecting the same, both as such estate and charges existed at the time ofhis imprisonment, and as they exist at the time of preparing suchpetition, together with a just and true account of all deeds,securities, books, and writings whatsoever relating to saidestate and the charges thereon, with the names and places of abode of the witnesses to such deeds, securities, and writing; but does not require the debtor to give an account of hiscreditors. On account of this supposed discrepancy it has been suggested that this reference to the sixth article might have been a mistake, and that the fifth article was intended. (2Barb. Ch. R. 296.) With all due deference to the learned jurist who made this suggestion, it is at best founded on conjecture, and it appears to me not a conjecture of the most probable character. The same section and the same sentence of the act of 1831, which refers to the sixth article of title first and chapter five, of the second part of the Revised Statutes, for the form of the inventory, also refers to the fifth section of the "sixth article of the aforesaid title and chapter" for the form of the oath. Now the fifth section of article sixth does contain the form of an oath which might have been the subject of the reference, while neither the fifth section of articlefifth, nor of any other article in the chapter, gives any form of an oath or makes any mention of one. The correctness of the reference to the fifth section of the sixth article, in respect to the form of the oath, is therefore proved by its concurrence, not only with the article referred to, but with the section, and the subject of the section; which leaves the suggestion of a mistake in the reference as to the inventory, weakened by the improbable supposition, *120 that in referring to the same statute twice, in the same sentence, and in the same words, the legislature was correct in one reference and mistaken in the other, or that they were mistaken in both references. That in referring to the form of theinventory they mistook the article, and in referring to the form of the oath they mistook the section, and referred to one which made no mention of the subject for which the reference was made. Besides the fifth article, supposed to be the one intended to be referred to, gives no form of an inventory of the estate, but for that purpose refers to the third article which relates to "voluntary assignments, "made pursuant to the application of an insolvent and his "creditors;" a system altogether different from the one contemplated by the act of 1831, both in its proceedings and consequences. None of the articles in this chapter but the sixth, requires that the debtor should annex to his petition, an account of his estate and the charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing his petition; nor would such requirement be applicable to the situation of the debtors in the other cases; while such an inventory is required by the sixth article, and is applicable to the debtor's situation. The subject matter of the two kinds of inventories are essentially different, and the cases and proceedings in which they are to be used, and the objects of such proceedings, are materially different. The suggestion of a mistake in the reference alluded to, therefore, involves not only a mistake in the number of the article referred to, but also the consequential mistake in the matter which the legislature in the solemn exercise of their power to make statutes, intended to adopt, as part of the laws of the land, and the belief that such mistake was suffered to pass unnoticed through all the various stages of legislation. It must be confessed that this is carrying the doctrine of judicial supposition to its full extent, and I think further than we are authorized to go in the premises. In the first place there is no necessity for *121 reading the 13th section of the act of 1831, so as to make it inconsistent with the statute to which it expressly refers. The similarity required by it, may be applied only to the inventory of the estate and the charges affecting the same, and theaccount of all deeds, securities, books and writings relating to such estate and charges without the alteration of a word in the sentence, by the simple removal of a comma. The sentence would then read thus. "On presenting such petition, "such defendant shall deliver an account of his creditors, "and an inventory of his estate similar in all respects to the "account and inventory required of a debtor, by the sixth "article," c. The objects of the act of 1831, and the subject to which the provisions adopted by the reference was to be applied, show the propriety of requiring such an inventory as is presented by article sixth and therefore the probable correctness of the reference. It must be borne in mind, that the sixth article of chapter fifth of the revised statutes, relates only to cases where persons imprisoned in execution in civil causes, propose to assign their property for the benefit of those creditors by whom they are imprisoned, and thereupon to be discharged from such imprisonment. As the imprisonment did not deprive the debtor of the power to dispose of his property in the payment of his debts, nor impair his obligations to those creditors who had not imprisoned him, nor probably increase his kindness or gratitude toward those who had; and as the discharge to be obtained under the application which he was about to make, only protected him from being again imprisoned, by the same creditors for the same debts; his feeling and the policy suggested by his situation, certainly had a tendency to induce him, while imprisoned, to make his terms with his more lenient creditors, and then to demand his liberty from the others, on tendering the remaining fragments of his property. In such a case, and when imprisonment was acknowledged as a legal means of obtaining satisfaction of a debt, it was but justice to the party from whom the surrender of such means was demanded, *122 that the demandant should be required to show the changes, if any, which he had made in his property during his imprisonment to real or pretended creditors; and the accounts of the property required by the sixth article were adapted to that purpose. Now it is easy to perceive that the situation of a debtor arrested on a judge's warrant under the act of 1831, as respects the feelings, motives and policy excited by his condition, is very similar to that of an imprisoned debtor at the time of enacting the statute contained in the sixth article referred to. He is pursued only by creditors who have obtained judgments, or commenced suits against him, and he may have other more forbearing creditors. The proceedings under the warrant if he cannot pay, or secure, the demand of the pursuing creditor, must result in absolute imprisonment, or a surrender of his property, for the benefit of the creditors who caused him to be arrested; or perhaps of those who are in a condition to pursue him by warrant; and for the surrender of which he can obtain a discharge which will only exonerate him from being pursued again, by the same or some other creditor, for the frauds committed, or intended, before such discharge; leaving his unsatisfied creditors to pursue him anew, whenever they can establish any acts of fraud, subsequent to his discharge, and leaving him without property, liable to be harassed by the suspicions of unpaid creditors. He feels that the creditors who have arrested him have done their worst, and is interested in reducing the number of his pursuers, and in every point of view has the same inducement to dispose of his property, between the time of his arrest, and the time of applying for an assignment and discharge, as the imprisoned debtor had between the time of his commitment and the time of his making a similar application, and I have no doubt that the perception of the similarity, suggested to the legislature the propriety of adopting the form of the inventory required by the sixth article, and that it was deliberately and designedly adopted on that account, and intended to be applied to the imprisonment under the *123 judge's warrant. There is certainly no great misapplication of legal thought, or legal phraseology, in considering, or speaking, of a person under arrest on a warrant, as imprisoned.* I think the propriety of this construction may be *124 illustrated by this case. Bancker, whose petition and inventory are dated September 20, 1843, in his account of his estate, says, in substance, he has had no real estate in his possession since 28th February, 1843, and that he has at the time of preparing his account of his estate, no personal estate in his possession. He then shows that on the 28th February, 1843, he made an assignment of large real and personal property to two of his creditors for the payment of his debts. Admitting that assignment to have been fair and valid, still it was an assignment in trust, which might leave him a large residuary balance, which would be property, in equity, at least. It does not appear by the first papers presented by Bancker to the recorder, (which are the only ones I have taken into consideration,) when he was arrested by Judge Vanderpoel's warrant, though there is some reason to infer it was in the fore part of June. He however admits, in substance, that he gave a bond to avoid commitment on the 4th of September; even between that time and the time of preparing his petition and inventory, there was ample room for him to release, or dispose of all his residuary interest in the assigned property, and that he did so, is not very strongly negatived by his simple assertion on the 20th of September, that he had no real or personal property in his possession. I have no doubt that his inventory should have conformed to the inventory required by the sixth article of title first, chapter five of the second part of the revised statutes, and that it was void for the want of such conformity, and failed to give the recorder any jurisdiction over the matter attempted to be presented to him. The judgment appealed from, and the decision of the recorder must therefore be reversed.
Judgment reversed.
But the chief difficulty attending this construction of the 13th section, as was shown by Chancellor Walworth, (2 Barb. Ch.R. 296-7,) grows out of that provision of the 12th section which authorizes any person "against whom a suit "shall have been commenced in a court of record, in which such person by the "provisions of this act cannot be arrested or imprisoned," to apply for a discharge. In that case, to require the debtor who has neither been arrested or imprisoned, to give an account of his estate, both "as it existed at the time of hisimprisonment, "and as it exists at the time of preparing his petition," would be to require an impossibility, and would render nugatory the clause above quoted from the 12th section. It remains therefore to be settled what inventory will be required in such case. As there would be no creditor in a position to question the right of a debtor, not arrested, to make a voluntary assignment of his property at any time prior to the presentation of his petition; perhaps an account of his estate as it should exist at the time of preparing the petition would be sufficient; the other part of the provision relating to the inventory, being wholly inapplicable to such a state of facts.
Authorities are not wanting to justify such a construction; where the general terms of a statute have been held to include one class of cases, or persons, and not to include another class, according to the manifest intention of the legislature as gathered from other parts of the statute, though both classes were clearly embraced by the terms of the enactment. (Shoemaker v. Lansing, 17 Wend. 327 Jackson v. Collins. 3 Cow. 89; 1 Kent's Com. 462-3.) *125