Clement v. Bullens

Holmes, J.

The objections urged to the order of the Court of Insolvency that Clement should appear and answer are as follows.

It is said that the petition on which the order was made purports to be brought by two assignees, but is signed and sworn to by only one person, and by him without official addition, so that, as far as appears, “ the above named George S. Bullens ” mentioned in the affidavit may be some one other than the assignee of that name, and may not be. a “ person interested in the estate," as required by Pub. Sts. c. 157, § 70.

The answer to this is that the person signing the petition by doing so impliedly affirmed that he was the person of the same *196 name alleged in the body of the petition to bring it as assignee, and that the words “ the above named,” just quoted from the affidavit, identify the Bullens sworn as the one named in the petition. These considerations without more would have warranted the judge of the Court of Insolvency in finding that the affidavit was made by an assignee. But, for all we know, Bullens the assignee presented the petition to the judge in person. It is alleged in the bill before us that the petition “ was filed . . . by one or both of said assignees.”

The affidavit is objected to because the notary public subscribing it did not insert the words “Before me,” and did not attach his seal. However it may be as to affidavits before a commissioner required to obtain a certiorari, (The Queen v. Bloxham, 6 Q. B. 528,) or as the basis of an appeal, (Smart v. Howe, 3 Mich. 590 ,) the words “ Before me ” have not been held necessary in all cases. Empey v. King, 13 M. & W. 519. We are of opinion that the words “ Then personally appeared,” which did not occur in any of the foregoing cases, mean personally appeared before the signer, by their only fair interpretation. Furthermore, unless the allegation in the bill that the summons was issued “ on said petition and affidavit ” excludes the possibility, we cannot say that the notary did not attend Bullens before the judge, and make an oral statement. As to the want of a seal, a justice of the peace adds no seal to his certificate. If it is not true that when notaries public were given “the same authority to administer oaths as justices of the peace,” (Pub. Sts. c. 18, § 1,) it was not intended to require of them formalities which were not exacted from justices of the peace, then the case is disposed of by Jackman v. Gloucester, 143 Mass. 380 .

It is objected that an affidavit that the petition is true to the best of the affiant’s knowledge and belief is insufficient, citing Hadley v. Watson, 143 Mass. 27 . But that was as far as the affiant could be expected to go with regard to most of the facts alleged, and may be quite sufficient to show cause for examining a person under Pub. Sts. c. 157, § 70. O'Neil v. Glover, 5 Gray, 144 . American Carpet Lining Co. v. Chipman, 146 Mass. 385 . Binney v. Globe National Bank, 150 Mass. 574 .

The s,u¡BJ¡mons is in an unusual and bad form. It commands the present petitioner to appear and to submit to an examination *197 touching any estate of the insolvent debtor fraudulently received, concealed, embezzled, etc. by the petitioner, or any assets of the insolvent debtor in his possession, or “ anything material relating to the assets or dealings of said insolvent debtor, of which you have knowledge,” following the language of the statute as to the various matters of suspicion or knowledge which severally are cause for a summons, and going beyond the subjects for which a foundation was laid by the affidavit, and we imagine beyond anything intended to be imputed to the petitioner. It may be a question whether, when any cause is shown for an examination, the examination may not extend beyond the affidavit to anything material relating to the assets or dealings of the debtor. The statute, after providing for an examination of the debtor touching “ all matters which may affect .the settlement of his estate in insolvency,” provides that upon cause shown other persons may be summoned to submit to an examination “ in like manner,” which would seem to open a broad field. But even if the summons mentioned matters on which the plaintiff is not liable to examination, it is not void. Its operative part is to require the plaintiff to appear for examination, and to that extent it is good. It could not adjudicate in advance what questions the plaintiff is bound to answer, and must not be construed as purporting to do so. If, at the examination, questions shall be put to him which he. deems unauthorized, he can raise the objection then, before the judge of insolvency.

We have not found it necessary to consider the other objections to the bill.

Bill dismissed.