Thompson v. Snow

Shaw, C. J. This is a petition by Charles Thompson to this court, to vacate and supersede proceedings in insolvency commenced against the petitioner and Hollis Thompson, on the petition of Newell Snow. The_ latter was a proceeding in invitum, commenced by a creditor, alleging an attachment on mesne process of the estate of Charles and Hollis Thompson ; a return of the writ and an entry of the action; and that the debtors did not take measures to dissolve such attachment before the termination of the return term. This brings the case within the provisions of the insolvent law. St. 1838, c. 163, § 19. It was contended, that under the very general terms in the return of the officer, there was no sufficient attachment of the property of the debtors, to bring the case within the statute. As it is agreed that there was real estate of the debtors, which would be bound by such attachment, we should have been inclined to think it a sufficient attachment, but for the observations in the case of Dennis v. Sayles, 11 Met. 233. But as it is not necessary, we express no opinion on this point. The other objection to the validity of the proceedings, that no notice was given to the debtors before issuing the warrant, is decisive. The statute of 1844, c. 178, § 9, in all cases of proceeding in invitum, requires previous notice to be given to the debtor, and without it the proceedings are void; and such is the construction which has been put upon it. Buck v. Sayles, 9 Met. 459. Prior to the statute of 1844, previous notice to the debtor was not required. Kimball v. Morris, 2 Met. 573. But by that statute, such notice is required in all cases, where the proceedings are in invitum commenced by a creditor. Nor do we think that the proceedings against Charles [127] Thompson can be made good, by the formal waiver of notice given in this case by Hollis Thompson, after the proceedings commenced, even if jurisdiction could be given to the com missioners by consent of parties. We are not to assume, merely because it is so averred in the petition, that the two individuals were partners, or that there was any outstanding partnership debt. Charles Thompson had a right to be heard, and non constat, if he had had the notice the law requires, that he would not have contested both those allegations, and contested them successfully. All proceedings vacated and superseded.