52 Wis. 289 | Wis. | 1881
The vital question in this case is, whether the ¿assignment which was offered as the evidence of the plaintiff’s title to the property, is void on account of the omission of the plaintiff, as assignee, to affix his certificate to the list of creditors, as required by section 1697, B. S., before the filing of . such list in the office of the clerk. That section provides that “within ten days after the execution of the assignment, the assignor shall also make and file in the office of said clerk a correct inventory of his. assets and a list of his creditors, stating the place of residence of each such creditor and the amount due to each, which inventory and list shall .each be verified by his oath, and have affixed a certificate of the as-signee that the same is correct according to his best knowledge
It appears to us that the most natural and reasonable, as-well as the most grammatical, con struction of the word “ such,” as here used in reference to its antecedent, is that it refers only to “ a correct inventory ” of assets, and a list of creditors, without any reference whatever to the oath of the assignor or the certificate of the assignee: First. Recause the oath and certificate are not constituent parts of the inventory and list, but are extraneous and distinct from them, and are merely the verification and certificate of them; and the reference is only to the inventory and list as such, and nothing more. They do not in any sense affect the essential qualities or character of the inventory or list, or make them more correct and perfect than they are inherently so. This reference is to these two specific subjects or things, and to nothing else, and it should not be extended to embrace anything more than what is certainly within its terms. If the language, “ such inventory and
In respect to these requirements, the essential thing to be done, or “ the substance of. the thing provided for,” is the making and filing of a correct inventory of assets and list of creditors within ten days after the execution of the assignment. The creditors are concerned and interested in this alone, and it is essential that both the inventory and list should be as perfect and correct as possible, and be filed within the time, for the information of all concerned. Neither the oath of the assignor nor the certificate of the assignee
Nor must the maxim expressio unius exclusio alterius be ignored or underrated in the interpretation and construction of this statute. There are many of the requirements of this statute whose performance is essential to the validity of the assignment, and made so in express terms; but this, as we have seen, is not one of them. This creates a very strong presumption that the legislature did not intend to make a failure in this respect invalidate the assignment. This principle is recognized, in respect to statutes relating to assignments as to other matters, by many authorities, among which are Hardmann v. Bowen, 39 N. Y., 199; Lewis, Governor, v. Stout, 22 Wis., 235; Hutchinson v. Brown, 33 Wis., 464; Klauber v. Charlton, 45 Wis., 600; and in a late case of Hark v. Gladwell, 49 Wis., 172, it was held that the statute requir
In this case, the failure of the assignee to affix his certificate to the inventory and list being the only objection made to the validity of the assignment, it follows that the assignment should have been allowed as sufficient evidence of the plaintiff's title to the property, and the plaintiff ought to have recovered in the action.
By the Cowrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.