Marr v. Clark , 56 Me. 542 ( 1869 )

Danforth, J.

— The respondent Clark attempted to disclose under the provisions of c. 113 of the Revised Statutes before the other respondents, for the purpose of relieving himself from a bond he had previously given the petitioners to procure his discharge from arrest on mesne process. This is a statute proceeding, and, to make it effectual, the provisions of the statute as well as the condition of the bond must be complied with. Both the statute and the bond require that the debtor " shall submit himself to examination” and " make true disclosure of his business affairs .and property under oath" that the justices shall hear other legal and pertinent evidence adduced by the * * * creditor,” and that " the creditor may propose to the debtor any interrogatories pertinent to the inquiry.” R. S., c. 118, §§ 16, 17, 26 and 27.

In this case, the debtor refused to answer " interrogatories pertinent to the inquiry,” and to " make a true disclosure of his business affairs and property,” and the justices, refusing to hear other legal and pertinent testimony from the creditor, administered the oath. In so doing, they acted, as the record shows, not only upon wrong conclusions in matters of tact, but also upon erroneous principles of law and in direct violation of the provisions of the statute. Little, pet’r, v. Cochrane & al., 24 Maine, 559.

This mistaken view of the law on the part of the justices seems to have been founded upon the fact that the debtor had been decreed a bankrupt. From this they drew the inference that no further disclosure was necessary, for that law disposed of all the debtor’s property for the benefit of all his creditors alike. This last proposition may be true and yet afford no excuse from further disclosure.

The simple fact of bankruptcy is not a " true disclosure of his business affairs and property.” The statute requires more than that the debtor’s property should go to his creditors. It is not enough that the debtor, at the time of his disclosure, has no property liable to be taken to pay his debts. He must be able to show by his own oath, at least, that, since the debt for which he is arrested, or any part of it accrued, ho has acted fairly and honestly toward all his creditors ; that he has not directly or indirectly disposed of any of his property with intent to defraud any of them. Otherwise he is not entitled to the oath, though he may not have a single dollar with which to pay the debt. In such case the bond would remain in force and the creditor would have his remedy upon that.

If the bankrupt law will relieve the debtor from fulfilling the conditions of his bond, he may avail himself of that relief in any legitimate way. But he has sought his discharge in a method entirely independent of the bankrupt law. He has elected to rely, not upon a release from his bond, but upon a fulfilment of its conditions.

The only question presented under this process is whether he has done all that his obligation under the statute requires. As already'seen, it is clear he has not. The erroneous construction of the law, adopted by the justices, has deprived the creditors of their legal rights.

Exceptions overruled.

Proceedings of the justices quashed.

■ Appleton, C. J., Walton, Barrows and Tapley, JJ., concurred.