People ex rel. Muller v. Behrman , 1 Hill & Den. 81 ( 1843 )

By the Court,

Bronson, J.

By the 13th section of the act to abolish imprisonment for debt (Sfcat. 1831, p. 396), a defendant applying for a discharge is required to deliver “ an account of his creditors, and an inventory of his estate, similar in all respects to the account and inventory required of a debtor” by 2 R S., 31, §4. But this section does not require any account whatever of creditors. It only requires an account of the debtor’s estate, “ and of all charges affecting the same.” This probably led the defendant to give an account of his creditors under the head of charges affecting his estate. The form is well enough. There must be an account of creditors, because the 13th section requires it; but as no particular form is prescribed, none need be observed. There is a full and intelligible account of creditors, and that is sufficient.

It is urged that there should be such an account as is required by the third end fifth articles of the statute (2 R S., 17, § 5, and 28, § 2) relating to insolvent debtors—giving the residence of the creditor, the nature of the debt, the consideration, &c. But the answer is, that the 13th section of the act to abolish imprisonment for debt does not refer to those articles, but to the sixth ; and that, as we have already seen, requires no account whatever of the creditors. There was a reason for making this difference. In cases under the 3d and 5th articles all the creditors of the insolvent are interested in the proceedings. But in cases under the 6th article, and under the statute in question, no creditor is concerned but the. particular, one who has resorted to legal process for the collection of his debt.

There was an affidavit of the defendant indorsed upon the petition, and it was in the words prescribed by the statute, § 13, refering to 2 E. S., 32, § 5. It is supposed that the affidavit was defective, because it said nothing in particular • concerning the account of creditors. But it is enough that the defendant followed the form given him by law.

Due proof of the service of notice and copies of the papers under § 14 was made to the judge at the time of presenting the petition. But when the creditor presented the papers which had been served upon him, it turned out that there had been two clerical errors of no great importance in making the copies. The errors were not of such a character as would be likely to mislead or otherwise- prejudice the creditor, and could not, I think, affect the question of jurisdiction. The English courts are very strict in relation to the copy of process under which the party is to be arrested and held to bail. (Byfield v. Street, and Nicol v. Boyn, 10 Bing., 27, 339.) But I do not understand those cases as going the length of holding the arrest absolutely void on account of the mistake in the copy of the copias.

It is then said, that if the judge acquired jurisdiction, he lost it by continuing the hearing for more than thirty days. (§ 16.) The judge can not adjourn the hearing for more than thirty days on the application of either party, without the assent of the other. But in this case the hearing was continued more than thirty days with the consent of both parties •, and I think the judge did not lose his power to proceed to a final decision. -

The form of the oath administered to the debtor was well enough. (§ 15, refering to 2 E. S., 20, § 22.) And as to the objection that the assigneee was not sworn, I see nothing in the statute requiring it. But we need not trouble ourselves with either of these points, as they do not touch the question of jurisdiction. We can not, upon this common law certiorari, look into the evidence to see whether the judge was right on the question of fraud. That doctrine is too well settled to be a proper subject for judicial discussion. The argument of counsel reported in Niblo v. Post, 25 Wend., 280, has not altered the law.

Proceedings affirmed.