Case of Snow

22 F. Cas. 722, 10 Law Rep. 344

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1847
• Status: Published

Opinion

WOODBURY, Circuit Justice.

In this case the petition would be in better form, if amended and containing the fact, conceded at the hearing, that between the first and second examination a change had happened in the situation of the petitioner as to the property, all of his having been assigned under the insolvent law, and that fact stated to the district judge as a reason for issuing a second commission. The petitioner is at liberty, therefore, to make, that amendment, and having made it, the case will be considered as it now stands. First there had been one commission • and an inquiry under it in August, 1S47, and a decision made, that Know then appeared to possess so much property as not to be entitled to have the poor debtor’s oath administered to him, under either of the acts of congress on the subject of 1S00, or 1S24, or 1837. There is no objection to the validity of that proceeding. And whether, in strict law, it is to be considered as rein judicatam between the parties on this point, or not, it would be trifling with the process issued in these cases, and with the decisions of respectable commissioners, to allow another hearing of the same point before another commissioner on the same state of facts. There should, at least, be as much shown to justify it, as is required to have a rehearing in equity, or a new trial at common law.

There should be a new state of facts, or newly discovered evidence, or a clear mistake shown on the old facts. But when either of them is done, if a rehearing or new trial be proper on such grounds, it would be proper a fortiori to allow another examination in a case like this. Here some such grounds did appear on the second application to the judge. The whole property, which prevented a discharge at first, had been surrendered to the creditors, and all the obstacles to the debtor being considered poor were removed. The' judge, on being informed of this, properly allowed another commission. And, for anything now shown on the merits, Snow was properly allowed then to take the poor debtor’s oath. If, as is urged, proceedings of this kind should be viewed like actions between parties, and conclusive on the merits once settled, it ■ is manifest that by analogy a new hearing was proper on a state of facts occurring which was materially new. So, beyond this, it is manifest that a former judgment between the parties, as for instance, that one was not a poor debt- or on a certain day, viz., the 5th of August, should be no bar to showing that he had become a poor debtor on the 14th of October. The point settled is not the same; it relates to a different period, and of course, neither in form or substance, should the first decision in such a case be conclusive as against the second one. See in Burnham v. Webster [Case No. 2,179], and Greely v. Smith [Id. 5,749], the precedents and reasons collected. It might have been better to have set out the change in his property in writing to the district judge on the second application. But in proceedings like these, not usually very formal, where both parties were present at the subsequent hearing, and the decision appears to have been correct on the facts, I am disposed, in this collateral proceeding, and in favor of personal liberty, not to be over critical and to uphold them. [1 Tidd, Proc. 567.] ² It is another consideration in favor of such a conclusion, that this course cannot work any essential injury or damage to the creditors. They have a prior claim in the attachment in the other action to all the debtor’s property whieh they choose to seize. They have enjoyed the privilege of waiving their doubtful attachment and resorting to imprisonment of the body in order to compel a surrender of any secreted property, and again, after this discharge, they can probably prove their debt and be allowed a pro rata dividend out of all the property in the hands of the assignees.

As another evidence that the second examination here was proper on a new state of facts, such an one is understood to be given by the Massachusetts statute in express terms. Rev. St. c. 98, § 12. Nor was the length of the notice of fifteen days, as is argued, objectionable, the act of congress requiring only fifteen days, however the local laws provide for more time. Lockhurst v. West, 7 Metc. (Mass.) 230. This objection, too, could not equitably avail after an appearance, and being overruled, as it was before the commissioner, and a full healing had on the merits.

' But beside these answers to most of the exceptions, there exists another entitled to much weight. This is, that the district judge, in whom the power is vested in these cases by the acts of congress, has allowed the second examination. That the commissioner under him, after objections made, has also decided to go into it, and has actually administered the oath to the debtor; and that no request has ...been made by the creditors to the district judge, on any other proceeding instituted, to annul or set aside the doings of the commissioner, or his certificate to the jailer. There is much, then, in the idea that in this collateral and, in some respects, independent inquiry, we ought to consider those proceedings binding till reversed or quashed. More especially should we do this, unless, on their face, they appear to be so defective as to be utterly void (see Suffolk Bank v. Merrill [Case No. 13, 591], Maine Dist. Oct.. 1847), or are impeached now by proof of fatal irregularities. But so far from that, they appear well in form, though not so full in some particulars as might be desirable. Nor has any evidence been offered to show them to have been irregular and illegal, or to have been either fraudulent or evasive of the just rights of creditors. On the contrary, there seems presented a proper condition of things for permitting the poor debt- or’s oath and a discharge. And any suspected concealment of property, or any other attempt by the debtor not to let his creditors enjoy the full benefit of his estate under the insolvent law, is open to exposure, and can effectually be defeated by attending to and enforcing the provisions of that law before the appropriate state tribunals.

On the whole case, then, both on its face on the record, as well as on the facts elicited in this hearing, it seems to me that we should be doing violence to the wishes of congress, as expressed in their several acts, and be accessory to a further infringement of the liberty of a citizen after he has surrendered all his property, and on a hearing been adjudged entitled to a discharge, if we were to allow him to be detained longer in prison under the process of this court.

So far, then, as he is detained by that process in favor of Myers & Co. in the proceedings we have been examining, he must be set at liberty.

2 [From 10 Law Rep. 344.]