Symonds v. Barnes.

SYMONDS, plaintiff, v. BARNES.

(59 Me. 191.)

Bankruptcy — omission of creditor's claim from schedule of debts.

The omission of a petitioner in bankruptcy, under the act of 1867, to iza udo a creditor's claim in his sworn schedule of debts, or to see that the creditor has notice of the proceedings, must be shown to be willful and fraudulent in order to avoid the discharge.

ACTION in a promissory note dated April 21, 1853, given by defendant to plaintiff. Defendant pleaded a discharge in bankruptcy under the act of 1867. Plaintiff replied that his claim was omitted from the schedule of debts sworn to by defendant; and that he had no notice of the proceedings in bankruptcy, and that he never proved his claim. To the reply there was a demurrer and joinder. The demurrer was sustained; whereupon plaintiff alleged exceptions.

Symonds & Libby, for plaintiff.

J. D. & F. Fessenden, for defendant.

APPLETON, C. J. By the bankrupt act of 1841 the discharge of a bankrupt might be impeached for fraud in any court in which it was pleaded in bar to a pending suit.

By the bankrupt act of 1867, section 34, it is enacted, "that a discharge duly granted under this act shall release the bankrupt from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy," unless his creditors should "see fit to contest the validity of said discharge on the ground that it was fraudulently obtained." This must be done in the court in which it was granted within two years, for some of the fraudulent acts of omission or commission particularly set forth in section 29. Such was the construction given by this court to the act, in Corey v. Ripley, 57 Me. 69, and upon examining the debates, when the bill was under discussion, it will be seen that the effect there given to the discharge, unless set aside and annulled by the federal court granting it, was in strict conformity with the intention of congress.

Syn. nds v. Barnes.

The defendant pleads a discharge. It is in due form of law. "An order of discharge will be sufficient evidence of bankruptcy and of the validity of the proceedings thereon." Robson's Law of Bankruptcy, 458. The order proves itself. 1 Deacon on Bankruptcy, 800. The plaintiff replies that his claim was omitted in the schedule of debts sworn to by the defendant. If the bankrupt "has willfully sworn falsely in his affidavit annexed to his schedule or inventory," the court granting the discharge may, upon proceedings duly had before it, "set aside and annul the same."

* * *

But the plea contains no allegation of fraudulent conduct or willful false swearing. The court granting the discharge would not be authorized by the act "to set aside or annul the same." Much less would any other court.

Under the act of 1841, it was held that a plaintiff could not avoid a discharge of his bankrupt debtor by merely showing that the defendant, in his petition in bankruptcy, omitted to insert the plaintiff's name, etc., to the sworn list of creditors, and that by reason of such omission the plaintiff had no notice of the proceedings in bankruptcy, and could neither prove his claims against the defendant nor oppose his discharge. To avoid the discharge, by reason of such omission, it must be shown to be willful and fraudulent. Burnside v. Brigham, 8 Metc. 75; Mitchell v. Singletary, 19 Ohio, 219.

The accidental omission of a creditor's name in the schedule of indebtedness is not made a ground for annulling and setting aside a discharge. The omission, to have that effect, must be fraudulent. The affidavit annexed to the schedule must be willfully false. Indeed, the act assumes that the schedule of debts may not be complete, for, by section 11, the marshal is directed to serve "written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him in addition by the debtor.

Exceptions overruled.

Carter v. Allen.

CARTER, plaintiff, v. ALLEN.

(50 Me. 296.)

Tax-collector-liability of.

A tax-collector, whose statutory duty was, after selling a distress, to deduct the tax and expense of sale, and restore the balance to the former owner, applied a portion of the proceeds in payment of a tax already paid, and of illegal charges, before returning the balance. Held, an abuse of authority which rendered him a trespasser ab initio.

ACTION of trespass by Asa Carter against George W. Allen, sheriff of Surry. Defendant was collector for 1865, 1866 and 1867, and seized a colt of plaintiff for non-payment of taxes for these years. The distress was regularly sold, but it was contended in this action that defendant did not comply with Revised Statutes, chapter 6, section 105, in properly "restoring the balance to the former owner, with a written account of the sale and charges." The account was furnished and the surplus, according to the account, was tendered to plaintiff, but it appeared. that the account was inaccurate, and contained the tax of 1866, which had already been paid by sale of real estate, and certain charges which were illegal. The case was reported; and, if the action could be sustained, the plaintiff's damages were to be assessed by the court at nisi prius.

A. Wisewell, for plaintiff..

E. Hale and L. A. Emery, for defendant.

WALTON, J. It was held in the celebrated case of The Six Carpenters, 8 Coke, 146, and in a large number of cases since, that if a man abuses an authority given him by the law, he becomes a trespasser ab initio.

The rule is founded in public policy. It was observed that perons clothed with official power were exceedingly apt to become careless and oppressive in the use of it. To counteract this tendency they are required to act at their peril. their authority, nor in any way abuse it, the

If they do not exceed law protects them; if

they do, then their protection is gone. Security against official

Carter v. Allen.

carelessness and oppression is the reason of the rule; and this protection being as necessary now as at any former time, there ought to be no relaxation of the rule.

Assuming that in this case the defendant, as collector of taxes, had a right to seize and sell the plaintiff's property to pay the taxes that were then due and unpaid, it was clearly his duty, after deducting the tax and expense of sale, to restore the balance to the plaintiff. R. S., ch. 6, § 105. This he did not do. On the contrary, he applied a portion of the money to pay a tax that had already been paid, and another portion of it to pay charges which he had no right to make. This is admitted. We cannot doubt that such a misappropriation of the proceeds of the sale was, in contemplation of law, such an abuse of his authority as made him a trespasser ab initio.

The statute above cited provides that the officer, after deducting the tax and expense of sale, shall restore the balance to the former owner, with a written account of the sale and charges. It was held in Blanchard v. Dow, 32 Me. 557, that a failure to deliver the written account made the collector a trespasser ab initio. Can a failure to deliver the balance of the money actually due have a less effect? The statute, in the same sentence, requires both the money and the account to be delivered. If a failure to deliver the one makes the officer a trespasser ab initio, how can a failure to deliver the other have a less effect? Is not the money quite as important to the former owner as the written account; and if a failure to deliver the latter makes the officer a trespasser ab initio, a fortiori, will not a neglect to deliver the former have the same effect? We cannot doubt that it will.

Defendant to be defaulted.

Damages to be assessed by the court at nisi prius.

State v. Cleaves.

STATE. plaintiff, v. CLEAVES.

(59 Me. 298.)

Husband and wife — liability of wife for acts committed in husband's presence · Criminal law-effect of defendant not testifying.

On an indictment against a wife for being a common seller of intoxicating liquors, the judge charged the jury "that the fact that defendant did not go upon the stand to testify was a proper matter to be taken into consideration in determining the question of her guilt or innocence." The judge was requested to charge the jury" that if any of the sales were made by the wife in the presence of her husband, she would be presumed to act under the coercion, compulsion or direction of her husband, and would not be liable for such sales." The request was refused. Held, that the charge and the refusal to charge were correct.

The presumption of law, that the wife committed an offense by the coercion of the husband, when he was present, is very slight, and may be rebutted by slight circumstances; and, while the first portion of the request was legally correct, the conclusion contained in the last clause, that she" would not be liable for such sales," is incorrect.

INDICTMENT against a married woman for being a common seller of intoxicating liquors. It appeared that, at some of the sales, the husband of defendant was present. The judge charged the jury "that the fact that the defendant did not go upon the stand to testify, was a proper matter to be taken into consideration by them in determining the question of her guilt or innocence." The judge was requested to charge the jury "that, if any of the sales were made by the wife in the presence of her husband, she would be presumed to act under the coercion, compulsion or direction of her husband, and would not be liable for such sales." This was refused. The jury returned a verdict of guilty. Defendant alleged exceptions.

T. B. Reed, attorney-general, for State.

H. L. Whitcomb, for defendant.

APPLETON, C. J. The defendant, a married woman, was indicted for being a common seller of intoxicating liquors.

The presiding justice instructed the jury "that the fact that the