O'Neil v. Glover

Thomas, J. This is a petition brought under the St. of 1838, c. 163, § 18, giving this court jurisdiction in equity in cases arising under the insolvent laws. The object of the petition is to enjoin the commissioner of insolvency from further proceeding in the cause, and to vacate the acts already done. — 156 — Involuntary proceedings in insolvency w ere , commenced against the present petitioner, in the name of Thomas Glover, claiming to be a creditor of O’Neil to the amount of one hundred dollars and upwards, and alleging that O’Neil had fraudulently concealed his property to prevent its being attached or taken on legal process. To the validity of the proceedings before the commissioner, both as to matters of form and of substance, several objections are made. We proceed to consider them in their natural order. 1st. As to matters of form. The petition was signed “ Thomas Glover, by Richard Glover his attorney,” and sworn to by Richard Glover; the form of oath being that the facts set forth in the petition “are true, according to his best knowledge and belief.” It is said the petition is defective, 1st, because it is not signed and sworn to by the petitioner in person; 2d, because the oath is insufficient. 1. We think the statute does not require that the petition should be signed or sworn to by the creditor in person. The language of the statute is “ any of his creditors, whose claims provable against his estate amount to the sum of one hundred dollars, may apply by petition, stating the facts and the nature of said claims, verified by oath.” St. 1844, c. 178, § 9. The language of the statute to which the last is an addition is, “ any creditor, having a demand,” &c., “ may apply, by petition, setting forth the facts, and praying that a warrant may issue.” St. 1838, c. 163, § 19. Upon a petition so filed, notice is in all cases to be given to the debtor; and if, upon a hearing before the commissioner, the facts set forth in the petition shall appear to be true, a warrant is to issue. St. 1844, c. 178, § 9. Buck v. Sayles, 9 Met. 459. Thompson v. Snow, 4 Cush. 121. On such hearing, the allegations made in the petition, though on oath, are not to be received as evidence. They constitute ground only for notice to the debtor, and an examination and hearing of the cause. Jordan, petitioner, 9 Met. 292. Where the subject matter for the action of a judicial tribunal is exclusively within the knowledge of the party moving for its judgment, or where the law has reposed in such party a per — 157 — sonal trust and confidence, the party must petition in person. But except in cases falling within these principles, unless the language of the statute in terms requires it, we see no good reason for the restriction. On the other hand, it is apparent that great embarrassment might result from it. The case at bar presents an apt illustration. The creditor resides in London. In relation both to the debt due, and the acts of insolvency, his agent and attorney here had the knowledge of the facts. To require the petition to be sent to London for the signature and verification of the creditor would not only subject him to unnecessary expense; but the necessary delay might, it is obvious, defeat the very object of the petition. We are not to presume that the commissioner or judge of insolvency will act without discretion in the matter, or without inquiring as to the authority of the person assuming to act for the creditor, and his means of knowing the facts he assumes to verify. 2. Nor does the objection to the form of the oath strike us as sound. In relation to the acts to establish concealment, fraudulent conveyance, or other act of insolvency, it is apparent that they would seldom be within the personal knowledge of the petitioning creditor; and if, as to the acts of insolvency, as well as to the debt itself, the commissioner or judge has this form of verification, by one who has reasonable opportunity of knowing the facts, we think it presents a basis for notice and inquiry, reasonable in itself, and fairly within the provision of the statute. 3. It is said that this petition is defective because it contains no allegation of the insolvency of the debtor. Such allegation is, we think, not necessary. And it is not necessary to allege such insolvency, because it is not necessary to prove it. Our insolvent law is, in substance and effect, and especially in its proceedings in invitum, a system of bankruptcy. Upon the doing by the debtor of any of certain fraudulent acts, he commits an act of insolvency or bankruptcy, and furnishes legal ground for declaring him insolvent and for the sequestration of his estate. — 158 — The language of the statutes is clear and explicit. Sts. 1838, c. 163, § 19 ; 1844, c. 178, § 9. The latter section is as follows; “ In addition to the several causes for proceeding against an insolvent debtor, enumerated in the statute of 1838, c. 163, § 19, if any person shall remove himself, or his property, or any part thereof, from the Commonwealth, with intent to defraud his creditors, or shall conceal himself to avoid arrest, or his property, or any part thereof, to prevent its being attached or taken on any legal process, or make any fraudulent conveyance or transfer of his property, or any part thereof, then any of his creditors, whose claims, provable against his estate under this act and the aforementioned acts or any of them, amount to the sum of one hundred dollars, may apply by petition.” 4. A question of practical difficulty might have arisen if the case had shown the existence of but a single creditor. It was upon this ground, we understand, the temporary injunction was granted. But it now appears there are other creditors, and though their debts are secured by mortgage, they may, under the provisions of the statute, release then: security, and prove their claims, or, under the order of the judge, sell the property held as collateral security, and make proof of the balance. St. 1838, c. 163, § 3. Without deciding what would be the result if the petitioning creditor was the sole creditor, we think it plain that upon proof of the existence of the debt due the petitioner, and of the existence of other creditors, so that a distribution might be made, and of the commission of any one of the fraudulent acts enumerated in the statute, the warrant must issue. 5. It is further objected to the validity of the proceedings before the commissioner, that there was neither allegation in the petition, nor proof before the commissioner, of any facts which constitute concealment of property, within the intendment of the statute of 1844, c. 178, § 9. As to the question of form, we think the defect was cured by the specification filed at the adjournment, which was ordered upon the motion of the petitioner in this case, the respondent in the original proceeding. — 159 — 6. What facts, under the insolvent law, would constitute a concealment of property is a question of greater difficulty. The words of the statute have just been cited. By the concealing of property to prevent its being attached or taken on any legal process, is physical concealment meant, a literal secreting or hiding of the property only; or does it also include the doing of any acts by which, in substance and effect, the title of the party to the estate real or personal shall be concealed, his property in the chattel or land or stock so covered up, that .it cannot be reached by the process of the law ? We think the latter is the true construction of the statute. Concealment is the doing of an act, whether by way of conveyance or transfer, by which the true title and ownership of the debtor is kept from the view of the creditor, when done with the intent and purpose of preventing its being attached or taken on execution. Such interpretation is within the reason, as well as the words of the statute. As if A should transfer his stock in a bank to B, as collateral security for a debt, and, having paid the debt, should still keep it in the name of B, with the view and for the purpose of preventing the attachment or seizure on execution by his creditors, there would be a concealment of his property in the stock. The plain object of the statute is to give a more effective remedy than that by attachment, to get at that which is covered up or changed into such form that the ordinary process of w cannot reach it. The narrower construction of the statute .vould render it comparatively useless for any practical purpose. The case of Livermore v. Bagley, 3 Mass. 487, to which the petitioner refers, arose under the provision of the first bankrupt law of the United States, the language of which is much less comprehensive than that of the act of 1844. It was, “ if any merchant,” &e., “ shall, with intent unlawfully to delay or defraud his creditors, secretly convey his goods out of his house, or conceal them to prevent their being taken in execution.” U. S. St. 1800, c. 19, § 1, 2 U. S. Sts. at Large, 20, 21. This provision, as the court intimate, seems to be limited to the removal or concealment of household goods, or goods particularly connected with a man’s station or credit in business. But — 160 — whether so restricted or not, the words “ secretly convey his goods out of his house or conceal them ” clearly refer to a physical asportation, and to chattels capable of being so carried. The insolvent law uses a word of much larger import, “ property,” which includes real as well as personal; all property which could be attached or taken on any legal process, in respect to which a physical or actual concealment, as distinct from a constructive one, the concealment of one’s title or inter est in it, would be wholly insensible. To the suggestion, that a man cannot be said to conceal what he has sold, what is no longer his own, a sufficient answer is that the petition refers to what has been, and not merely to that which exists—to acts done within ninety days before the petition is filed. St. 1838, c. 163, § 19. In this view of the law, and upon the facts disclosed in the very able and elaborate opinion of the commissioner, annexed to and made part of his answer, we think there was such concealment of his property by the debtor as would authorize the issuing of the warrant against him; the debt or claim of the petitioning creditor being satisfactorily established. 7. But it is further objected to the validity of these proceedings, that the claim of the petitioning creditor was not one upon which proceedings in invitum could be instituted. The considerations of expediency and convenience are certainly very strong, but the language of the statutes is clear and conclusive upon the point. Sts. 1838, c. 163, § 19; 1844, c. 178, § 9. Under the statute, any claim may be the basis of proceedings in invitum, which is in its nature provable against the estate, and which is not secured by mortgage, pledge or lien. Whether the required amount was due is a question of fact to be heard before a single judge, but upon the report of the commissioner the debt of the petitioning creditor seems to be clearly established. 8. It is said the provisions of the Sts. of 1838, c. 163, § 19, and 1844, c. 178, § 9, are unconstitutional, because they do not secure to the debtor a trial by jury before the issuing of a warrant against him. — 161 — The obvious answer, we think, is that the proceeding, however important, is in its nature preliminary. It does not finally determine the question of indebtedness, it does not deprive the debtor of his property or estate. It is, in form, and in substance, but a taking of the property of the debtor into the custody of the law for the security of his creditors. The objection would apply with equal force to a writ of replevin, or to a taking on mesne process or by foreign attachment. 9. The motive which leads the petitioning creditor to institute proceedings in insolvency, the purpose he seeks to accomplish by them, all the conditions of the statute being complied with, if they are open and are material, are clearly questions of fact, upon which we have no evidence. 10. We have had some difficulty in determining the competency of the testimony of the witness Hall. The precise evidence of the witness is nowhere reported. But the ground upon which it is objected to, that it was a conversation held between third parties, and not in the presence of O’Neil, is negatived by the answer of the commissioner, which states that it was not only conversation in the presence of the debtor, but admitted only after proof of collusion between him and Bowker. Upon these facts we cannot say the evidence was wrongfully admitted. The result is, the temporary injunction must be dissolved, and the • Petition dismissed.