Davis v. Bunker

Mobton, J. The question in this case relates to the power of a court of insolvency to examine the officers of an insolvent corporation. The Tuxedo Manufacturing Company, of which the petitioners were officers, was duly adjudged insolvent on May 11,1895, and on the 23d of that month the respondent was duly appointed assignee. Afterwards various creditors from time to time filed petitions to examine the officers, the last being filed on March 17,1896, and then continued to April 9. The parties filing these petitions were led successively to abandon them for reasons which do not appear, and on April 9, 1896, the respondent filed the petition to which this appeal relates, and the petitioners after due hearing were ordered to submit to examination. [85] The third meeting was held on November 14, 1895, and adjourned to December 12, and thence to April 9. The provisions relating to the examination of the officers of insolvent corporations are to be found in Pub. Sts. c. 157, § 130, and are as follows: “ All the provisions of this chapter which apply to the debtor, or set forth his duties in regard to executing papers, submitting to examinations, . . . shall in like manner and with like force, effect, and penalties, apply to each and every officer of the corporation in relation to the same matters concerning the corporation and the money and property thereof.” The provisions relating to the examination of debtors are to be found in § 70 of the same chapter, and are these: “The debtor shall, when required by the court at any time before the granting of his certificate, upon reasonable notice, attend and submit to an examination on oath before the judge, by the assignee or by any creditor, touching his trade and dealings, his property and debts, and all matters which may affect the settlement of his estate in insolvency.” It is evident that these provisions cannot apply literally to officers of corporations, for it is expressly provided that discharges shall not be granted to them. Pub. Sts. c. 157, § 135. The petitioners contend, however, that the intention is that the examination of officers of corporations shall be limited in the same manner as that of debtors, which, generally speaking, will take place, if at all, at or before the third meeting, though if a discharge shall not then have been granted it may take place later. Kimball v. Morris, 2 Met. 573. Otherwise, they say, there would be no limit to the time when officers of corporations could be examined. But we think, in view of the fact that it is provided that discharges shall not be granted to corporations or their officers, that the reason for limiting their examination as that of debtors is limited fails, and that the more natural construction is that they may be examined at any time, in the exercise of a sound discretion on the part of the court, which in the present case we see no reason to doubt was properly exercised. The United States Bankrupt Law provides that “ the court may ... at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination.” U. S. Rev. Sts. § 5086. But it has been held that the generality of this clause is controlled by a subsequent [86] clause that “ the bankrupt shall at all times, until his discharge, be subject to the order of the court,” (§ 5104,) and that the bankrupt is not liable to examination after his discharge. In re Dole, 11 Blatch. 499; S. 0.9 Nat. Bankr. Reg. 193. In re Jones, 6 Nat. Bankr. Reg. 386. In re Witkowski, 10 Nat. Bankr. Reg. 209. Bump on Bankruptcy, (10th ed.) 653. As thus construed, the bankrupt law does not differ materially from our insolvent law in respect to its provisions for the examination of debtors. But though the provisions of the bankrupt law in regard to the examination and discharge of officers of bankrupt corporations are like those of our insolvent law (U. S. Rev. Sts. § 5122), we have beén referred to no case, and have found none, in which a construction such as the petitioners contend for here has been given to the bankrupt law; and the reasons given for refusing a discharge to corporations under the bankrupt law, which would apply equally under the insolvent law, would seem to exclude such a construction. New Lamp Chimney Co. v. Ansonia Brass & Copper Co. 91 U. S. 656. We think, therefore, that the order dismissing the petition should be affirmed. So ordered.