Morewood et al. v. Hollister

Morewood et al. v. Hollister. Certiorari. — Insolvency. On a certiorari to remove proceedings in insolvency, under the revised statutes (2 R. S. 49, § 47), the court is not limited to an inquiry into the jurisdiction of the officer, and the regularity of the proceedings ; it may proceed to examine and correct any erroneous decision upon a question of law. A general assignment, with preferences, is a bar to a discharge of the assignor under the insolvent laws, as to prior debts. Appeal from the general term of the Supreme Court, in the fifth district, where proceedings in insolvency, had before the first judge of the Oneida county court, on the application of Frederick Hollister, had been affirmed, on certiorari. This was a proceeding in insolvency before P. Sheldon Root, first judge of the Oneida county court, on the application of Frederick Hollister to be discharged from his debts. *It appeared by the return to the cer- ^ tiorari (which included the evidence given on the *- hearing), that on the 30th September 1846, Frederick Hollister, of the city of Utica, and George W. Stanton & Son, his creditors, residing in the United States, presented a petition to Judge Root, setting forth the insolvency of Hollister; and that George W. Stanton & Son were his creditors, and had owing to them, in good faith, by the insolvent, amounting to, at least, two-thirds of all the debts owing by him to creditors residing within the United States; and praying that the estate of the insolvent might be assigned to persons therein named, and that the insolvent might be discharged from his debts, according to the provisions of statute, &c. The indebtedness to George W. Stanton & Son was stated at $242,821.16, comprising a general indebtedness of $198,068.88; a deficiency in two chancery foreclosures of mortgages of $20,952.28; and a balance of $20,000 due on two judgments held by them. . The total amount of the debts (as shown by a subsequent amendment of the schedule), was $312,000. There was no inventory of the estate of the insolvent; but the usual affidavits were annexed; and there was no statement of George W. Stanton & Son relinquishing to the trustees to be appointed, the judg- # ments and ^decrees held by them as security for -* part of the amount owing by the insolvent. On presentation of the petition, Judge Root made the usual order to show cause; and on the day fixed for a hearing' leave-was ’ given to: amend the schedules. In •the course of the proceedings, George W. Morewood and others, opposing creditors, showed that on the 25th November 1844, Frederick Hollister, the insolvent, had executed to four trustees a general assignment of all his estate (except such as was exempt from execution) for the benefit of his creditors, with-preferences. After various proceedings before the judge, an order was made, on the 28th January 1846, directing an assignment by the inéolvent of his estate to the persons named in the petition for the use of his creditors; which having *been done, and the trust accepted, a further ' -* order was made, on the 30th January, discharging the insolvent. On the hearing of the certiorari, the supreme court affirmed the proceedings, the following opinion being delivered by Pratt, J.:— “ The first subject of inquiry in this cause is, to ascertain what part of the proceedings, before the officer is brought up to this court by the writ of certiorari. If this was simply a common-law certiorari, we apprehend, there is not much difficulty, as it seems quite clear, that the office of the common-law certiorari was simply to bring up for review the record, or the proceedings in the nature of a record. The court of review, in such cases, only examines to see if the officer acquired jurisdiction, and acted during the whole proceedings within the limits of the jurisdiction thus acquired. (United States v. Wyngall, 4 Hill 16; 25 Wend. 167; 23 Id. 536; Tidd’s Pr. 1051,1138; Co. Lit. 288 b; 2 Salk. 504; 1 Id. 144, 146; 3 Bl. Com. 32 to 44; 2 Id. 182; 20 Johns. 80.) The certiorari holds the same relation to officers and courts of limited jurisdiction, as the writ of error does to judgments in courts of record. (25 Wend. 167; 17 Id. 467; 15 Id. 583; Tidd’s Pr. 787.) At common law, before the statute gave a bill of exceptions, the writ of error only removed the record. (25 Wend. 167; 17 Id. *467; 15 Id. 583; Tidd’s Pr. 787.) But in cases # of certiorari given by statute, it has, until re- *- cently, been very generally understood to enlarge the common-law powers, and to bring up for review all the adjudications of the inferior tribunal. “In the Matter of Wrigley, an insolvent debtor (8 Wend. 134), an application for a discharge was made under our two-third act, and the affidavit was sufficient, prima facie, to prove the requisite residence; but upon the hearing, proof was adduced, tending to show that at the time of the application, the insolvent did not reside in the city of New York, the place of the officer’s residence before whom the proceedings were had. The officer, notwithstanding, discharged him. The supreme court, upon certiorari, differed with the officer as to the effect of the evidence, and reversed the proceedings, which decision was affirmed in the court of errors. No point was raised that the court had not power to pass upon that question. “ So also, in the case of the President and Trustees of Brooklyn v. Patchin (8 Wend. 47), which was an assessment of Patchin’s damages for land taken and appropriated to a street, the supreme court reversed the proceedings of the court of common pleas, because it refused an adjournment, and because, on a view ordered, the jury was not attended by the proper officer, which judgment was also affirmed by the court of last resort. The question was distinctly raised by counsel, in the latter court, but the chancellor held, that the affidavits upon which the motion for an adjournment was made, were regularly before the supreme court, and that the common pleas, had they refused, might have been compelled to return the same. . “ Roach v. Cosine (9 Wend. 227), was a case of summary proceedings by a landlord to evict his tenant; the supreme court reversed the proceedings of the officer, upon the merits, although no question was raised as to his jurisdiction. (See also 2 Caines 179; 20 Johns. 430 ; Rowan v. Lyttle, 11 Wend. 616; 13 Id. 29; 7 Id. 239; 10 Id. 608; 15 Id. 452.) These cases, and many others that might be cited, show that the court has, in many instances, on certiorari, looked into the evidence, and' * 314 1 *in™stigated merds °f adjudications made -I by the officers and courts of limited jurisdiction, and that, until recently, their power to do so has rarely been questioned. “ It is true, that in most of the cases, the point has not been raised; but that fact alone, in so many cases where eminent counsel have been employed, ought to carry a moral weight in favor of the doctrine, almost, if not quite, equal to direct adjudications. And the same practice, we apprehend, has, in some measure, obtained in England and in our sister states. (Rex v. Killett, 4 Burr. 2063; Rex v. Read, Doug. 485; 1 T. R. 251; 6 Mad. 228; 2 T. R. 18; 4 Halst. 209; 10 Pick. 358; 8 Id. 226; 11 Mass. 466; 8 Greenl. 293; 5 Binn. 27; 4 Hayw. 100.) . “ It is difficult to perceive any good reason, why the legislature should attempt to confer a power which already existed, unless for the purpose of enlarging or modifying it in some respect; and were it not for the late decision by this court, I should have no doubt, that when the statute gave a certiorari to review the proceedings of an officer or court, it was the intention of the framers of the law, to confer upon this court the power to review all the adjudications made in the case. But we find a series of late cases in this court holding directly the opposite doctrine. Birdsall v. Phillips (17 Wend. 464) was a case of summary proceedings by a landlord to evict his tenant. The language of the statute which gives a certiorari in such cases, might well be construed to give to this court a broader power of review than is given by the act under which these proceedings were had. By that act, the certiorari is given for the purpose of examining any adjudication made, and when the proceedings are reversed, the court may order restitution with costs. (2 R. S. 76, §§ 47,48.) Yet, the court, in that case, held, that no other question could be raised, than those relating to the jurisdiction of the officer and the regularity of his proceedings; that the powers of the court under a common-law certiorari were not enlarged by that act. The court treated it simply as a common-law certiorari, and Justice Cowekt stated the *rule as follows: ‘ Wherever, were the suit at A common law, the matter alleged for error is of *- such a nature that a bill of exceptions would be essential to its review by a writ of error, a certiorari will not reach it, unless some statute has enlarged the effect of that writ in the particular case.’ The same principle is directly decided in Prindle v. Anderson (19 Wend. 391); Wilson v. Green (20 Id. 189); Johnson v. Moss (20 Id. 146); 2 Hill 415; 5 Id. 17-18, Paige, senator; 25 Wend. 167. In all these cases, the question was more or less discussed ; and since the case of Birdsall v. Phillips, it seems, that this court has uniformly held, that in such cases, they can only inquire whether the inferior tribunal had jurisdiction, and whether they acted within it. “There are also some earlier cases where the same doctrine was held. (5 Wend. 566; 15 Id. 583; 5 Cranch 173; 8 Cowen 13.) None of these cases have been overruled, to our knowledge. It is true, that in the cases of Prindle v. Anderson (23 Wend. 616) and in Niblo v. Post’s Executors (25 Id. 280) in the court of errors, the chancellor denied the correctness of the doctrine; but in both those cases, the decisions of the supreme court were affirmed, and the principle, therefore, remains undisturbed. It should also be noted, that the chancellor placed his opinion upon the peculiar phraseology of the statute under which the proceedings were had; the language of which, as we have before remarked, is different from the act under which the proceedings in question were had. Whatever, therefore, our own views might be of the merits of the question, and the effect which should be given to the earlier decisions, we feel bound to follow the late cases, adjudicating, as they do, directly the point in question. Constituted as this court now is, it becomes all important, that we should adhere strictly to the principle of ■ stare decisis, especially, as it applies to the decisions of the late supreme court, so far as they have settled the law in a given case, and leave it to a higher tribunal, or the law-making power, to correct them, if they are wrong. *“ The conclusion to which we come disposes of J most of the points raised by the plaintiff’s counsel. If the question of jurisdiction is the. only question for this court to inquire into, the points in relation to the admission or rejection of testimony, and the force and effect which should have been given to such testimony, when received, are subjects over which'this court has no control. “ It is insisted, that no proof was taken by the officer of the residence of the insolvent. We have decided, heretofore, in a case where the validity of this same discharge was in question, that the proof of residence was not a jurisdictional fact; but whether that be so or not, the amended return shows that such proof was made. At least, that may be fairly inferred from the facts set out in such amended return. “ In relation to the inventory of property required by-the statute to be annexed to the petition, the statute ought to receive a reasonable construction. Where the affidavits show that there is no property, it is unnecessary to go through the form of an inventory, which would contain nothing but a caption or heading. “A more important question arises in relation to the inventory of debts, and whether the consideration is sufficiently set out. It is not claimed, that the amended inventories and affidavits are not sufficiently explicit in relation to the consideration, but it is claimed, that the original inventory is so defective in that particular, that it did not give jurisdiction to the officer. The defects in this case are not so great as they were in the case of Hurst (7 Wend. 249). In that case, the court held, that the defect was cured by the amendment. The inventories must, therefore, have been sufficient to give jurisdiction to the officer, or he.would have had no authority to allow an amendment. The case of Taylor v. Williams (20 Johns. 21) was a case also where the consideration of the debt was set out in very general terms, yet the court held the discharge valid. (See also 2 Johns. 289.) We think, within the principles of those cases, that the consideration *as stated in the inventory and r affidavit, was sufficiently specific to give the *- officer jurisdiction. The proceedings of the officer must therefore be affirmed.” George B. Morewood and others, the opposing creditors, thereupon, took an appeal to this court. Mann, for the appellants. Beardsley, for the respondent. People v. Sutherland, 16 Hun 192. [MAJORITY — *Gardiner, J. Ebmonds, J.] *Gardiner, J. — The 47th section of the act, under which the petition of the insolvent in this case was presented, provides, that “ whenever any authority shall be exercised by any officer, pursuant to any provisions of this title, the proceedings may be removed into the supreme court by certiorari, and there examined and corrected.” Whenever an adjudication is made by the officer, upon any question of law or fact, it is hardly necessary to say, that he exercises an authority; and when this is done, the proceedings may be removed, by the express provisions of the act, to the supreme court, for review and correction. The term “ proceedings,” in its more general sense, in * 320 1 *aw’ *means a^ the steps or measures adopted -* in the prosecution or defence of an action. (Webster’s Diet.) It may mean more than the record history of the case, which was the definition of the learned counsel for the defendant; it is, undoubtedly, sometimes, used in this restrictive sense. In its ordinary acceptation, the word, when unqualified, except by the subject to which it is applied, includes the whole of the subject. Thus, the proceedings of a suit embrace all matters that occur in its progress, judicially; proceedings upon a trial, all that occurs in that part of the litigation. The subject specified in the section under consideration is, “ an authority exercised by the court or officer, pursuant to any provisions of the title.” The “proceedings,” by which I understand all the matters connected with, or attending the exercise of the power, which are necessary to enable the court of review to determine its validity and correctness, may be removed by the writ, and examined. The authority and duty of the supreme court, therefore, to review and correct all errors, in matters of law, committed by an officer, in the exercise of this extraordinary jurisdiction, cannot be justly questioned. This is all that is necessary to the determination of the present case; it is singular, that the right should ever have been doubted. ■ The power to discharge a debtor from all obligation to his creditors, without satisfaction, and against their consent, is one of the most delicate and important that can be conferred upon any tribunal. That its exercise should have been committed to a county officer, without any mode of correcting his errors, except those relating to his jurisdiction, or appearing upon the record, thus making his adjudications upon all questions of law, arising upon evidence, or without it, conclusive, would be an act of improvidence upon the part of the legislature, which ought not to be presumed, and of which, as I construe the statute, they have not been guilty. Such, I infer, would have been the opinion of the court below, *were it not for the adjudications in r that court, in Birdsall v. Phillips (17 Wend. 464) *- and Prindle v. Anderson (19 Id. 396). These cases arose under the landlord act, 2 R S. 516; the 47th section of that statute provided, that the supreme court might “ award a certiorari, for the purpose of examining any adjudication made in virtue of that act.” In opposition to this explicit language, the supreme court determined, that the certiorari was confined to questions of jurisdiction, and those arising upon the record. (19 Wend. 396.) These decisions were subsequently reviewed in the court of errors; and in Anderson v. Prindle (23 Wend. 616), the chancellor, in delivering the opinion of the court, remarked, that “the legislature intended to give the supreme court full and competent power to examine, upon the merits, every decision of the judge, a quo, upon a question of law, and to affirm, reverse or quash the proceedings, as justice may require.” (23 Wend. 618.) In Niblo v. Post (25 Wend. 313), the counsel for the appellant was stopped by the chancellor, when about to discuss the propriety of sending up testimony in answer to the writ, and informed, that such a return was authorized; and the decision in Prindle v. Anderson on . the point was referred to, as one in which the court had concurred, at a previous term: No judge dissented, or expressed a- doubt as to the construction given to the statute by the chancellor. It has been urged, that the judgments of the supreme court were affirmed in error upon other grounds, and, therefore, that their decision upon this point was not directly overruled. This is true, but it cannot be denied, that as evidence of the law, those adjudications cannot be regarded as conclusive authority, even in .the court in which they were pronounced. A further question remains. Did the county 'judge err, in the decision of any question of law, arising upon the proceedings under review ? ■ The 24th section of the statute under which they were commenced provides, “ that'.if it shall appear, upon the hearing before the officer, that the insolvent, in contemplation of his becoming' insolvent, or of his petition-J ing for- a discharge, or knowing of his insolvency, shall have made any assignment, &c., of any of his property, with a view to give a preference to any creditor, he shall not be entitléd to a discharge.” In January. 1845, the defendant executed an assignment of all -his real and personal property to trustees, for the benefit of his creditors, giving preferences to a very large amount, to certain individuals therein mentioned. Prior to the assignment, judgments had been obtained against the defendant to an amount exceeding. $50,000, on some of which executions had been issued, and levied upon his property. All these facts appear upon the assignment, which was read in evidence upon the hearing. The leading object of these proceedings by the insolvent was, to obtain a discharge from debts, existing at the time of the assignment, and which remained unsatisfied, after the disposition of the trust' property: The question is, whether the assignment itself is conclusive evidence of the knowledge of the defendant, that he was at the time insolvent; or that it was executed in contemplation of insolvency, according to the provisions of the sections above quoted. Insolvency, under the English bankrupt laws, exists, when the trader is not in a condition to pay his debts, in the usual and ordinary course of business, although his estate may ultimately prove sufficient to discharge them. (Shone v. Lucas, 3 D. & R. 218.) Under a statute of the United States, giving a preference to the government, in certain cases, insolvency signifies the situation of a person who has done some notorious act to divest himself of all his property; as a general assignment, or an application for relief under an insolvent law. (Bouvier’s L. Diet. tit. Insolvent, and cases there cited. 1 Pet. 438.) Whatever definition we adopt, a general assignment, according to the spirit of this statute, must be conclusive, both as to the fact of insolvency, and the intent of the debtor. The design to create a trust of this character, embracing all his estate, is evidence of a belief upon the part of the debtor, *of a present inability to pay his debts, or of an intent to defraud his creditors. (Van Nest v. Noe, 1 Sandf. Ch. 8.) The execution of such an assignment is, of itself, an act of insolvency of the most unequivocal character. The debtor thereby voluntarily divests himself of all means of payment, and renders it impossible that his creditors at large should obtain satisfaction of their demands, by due course of law; he and they must await the winding up of the trust. If the defendant is chargeable with the necessary consequences of his own acts, when he made up his mind to assign all his property, he contemplated insolvency; when he consummated his purpose, he became insolvent in fact. The statute looks to equality among creditors, in the distribution of the insolvent’s estate. The debtor may disregard this salutary principle; he may, notwithstanding, give preferences. But in the language of the revisers, in their note to this section, “ he must make them with the assent of the creditors, or at the hazard of losing the benefit of the law.” The doctrine evidently deducible from the statute is, that a debtor who creates a trust of all his property, in behalf of creditors, giving preference, can never claim a discharge from any debt, existing when -the trust was constituted; it is a legal bar, established by the statute, to the relief claimed by the insolvent. This has been disregarded by the learned judge before whom these proceedings were instituted; he must have decided, not only that the assignment, as a bar, was not conclusive, but that it was not primó facie evidence against the defendant. There is nothing in the statement made by the insolvent, on his examination, or in the other testimony, to impair in the slightest degree the effect of the assignment as presumptive evidence. He states, on his cross-examination by his counsel, in addition to the facts appearing on the trust deed, that he made the assignment to preserve his property from being sacrificed; that he did not assign in contemplation of insolvency; that he believed he had property, more than enough, at an honest valuation, to pay his debts; that he believed he should be able to make an arrangement by which all his debts could * 324 1 therefore, admits, not only that he could not pay his debts in the ordinary course of business, but that his property, if applied as the law would apply it, was insufficient for that purpose; that to prevent this, he assigned; that he did not contemplate insolvency, because if his creditors would receive property, at an honest valuation, instead of money, to which they were entitled; and his assignees, instead of converting the trust funds into cash, which he had made it their duty to do, would suffer him to make an arrangement with them, all his debts might be paid. It is, therefore, the ordinary case of a debtor swearing to an inference of law, when every fact disclosed by him contradicts his conclusion. I think, for the reasons suggested, that the judge erred in deciding “that the insolvent had, in all things, conformed to the matters required of him by the statute,” and “that he should be discharged from his debts.” First, because the assignment above mentioned was conclusive evidence that it was executed by the defendant in contemplation of insolvency: or, if not conclusive, then secondly, that it was, at least, presumptive evidence of that fact. That these were questions of law, arising upon facts undisputed, each of which, if raised in an action at law, by a demurrer to the evidence, should have been determined in favor of the opposing creditors. The judgment of the supreme court should be reversed, and that of the commissioner also, and the proceedings declared null and void. Ebmonds, J. — The point of most importance in this case is, whether in cases of summary proceedings, the supreme court, in reviewing them on certiorari, is confined merely to considerations affecting the jurisdiction and the regularity of the proceedings before the inferior magistrate, or whether it is bound to go further, and examine upon the merits every decision below upon a question of law. The tendency of legislation towards summary proceedings *has been so great, for some time past, and the number of such cases has so greatly in- * creased, within a few years, that the late supreme court deemed it necessary to struggle very earnestly to avoid the review of such cases, as far as was practicable. That court, therefore, in the latter part of its existence, did lay down the rule, that the review should be confined to matters relating only to jurisdiction and regularity of proceedings. But I believe this ruling never met the approval of the profession, or of the court of last resort. The leading case in the supreme court was Birdsall v. Phillips (17 Wend. 464). That was a case under the landlord and tenant act, and the questions presented on the argument were, that to give jurisdiction the conventional relation of landlord and tenant must exist; that if the party ever became tenant at will, it was by operation of law; that he was in fact tenant for life, under a title paramount; together with several objections to the admissibility of evidence. The court held, that the regularity of the proceedings not being questioned, and there being no pretence of want of jurisdiction, all these questions related to the merits and would not be reviewed. The court found it necessary to repeat this ruling many times, and several of the cases in which they did so, were cited on the argument, and in the opinion of the supreme court in this case. But the doctrine was questioned by the court of errors, in a measure by the late supreme court, and has been held to be otherwise in the present supreme court. In the case of Anderson v. Prindle (23 Wend. 616), where, in the supreme court, the doctrine of Birdsall v. Phillips -had been re-affirmed, the chancellor, who alone delivered any opinion in the court of errors, said, that he did not concur in the opinion that the supreme court had no authority to examine the correctness of the decisions of the judge before whom the summary proceedings were had, upon questions of law, which arose and were decided in the course of such proceedings. And he held, on the contrary, that the supreme court had full and competent authority to examine, upon the ^ merits, every decision of the *judge, upon a question of law, and to affirm, reverse or quash the proceedings, as justice should require; and that as a necessary consequence to this power, the inferior tribunal must return to that court on certiorari such part of the proceedings as are material to the examination of the ease on its merits. (See also Niblo v. Post’s Adminis trators, 25 Wend. 180.) The present supreme court, in Buck v. Binninger (3 Barb. 391), ruled in the same manner. In the case of summary convictions, the same principle has long been established in the English coirts and in our own. (People v. Phillips, 5 N. Y. Leg. Obs. 130; Paley on Convictions; passim.) The supreme court overlooked that, when the case of Birdsall v. Phillips was before them, but their attention was called to it in Simpson v. Rhinelander (20 Wend. 103), and the doctrine was admitted, in these words: “ It must appear that the party is legally convicted, therefore, the evidence must be regularly set out at large, in order that the court may judge whether the justice has convicted on proper evidence.” But that court say, there is a distinction between such convictions and orders and other adjudications. I confess, I am at a loss to discover what the distinction is, where it begins or ends, or on what principle it is founded. The reason of the rule applies as well in one case of a summary proceeding as another. It is, that the accused may have the opportunity of reviewing the judgment against' him, and of ascertaining whether he has been justly condemned; and, without some such opportunity, infinite injustice and oppression may be perpetrated, by proceedings not in conformity to the common law, but in derogation of it. The difficulty has been increased, and the error perpetuated, by the frequent repetition of the remark, that a certiorari carries up nothing but the record, and by the recollection of a statute long existing among us, expressly requiring, on certiorari to a justice of the peace, in a civil suit, the whole evidence to be returned. And it has, hence, been inferred, that the evidence is *never to be returned to a certiorari, unless expressly required by statute. This is a great mis- *- take, for it has been the practice, a great many years, in removing summary proceedings by certiorari, to require the evidence to be set out, so far, as, in the language of the court for the correction of errors, in Anderson v. Prindle, may be material to the examination, of the case, on the merits. That can be done only by the magistrate before whom the proceedings tore originally had, making up a record containing those facts, so that, when the certiorari shall carry up only the record, it shall of course take with it the facts necessary to a determination of the case, upon all the points properly examinable on review. . The question what the record shall contain ■ has frequently been before the" courts, and in cases of summary cpnvictions, it is well settled, both in England and in this country, that it must be a memorial of all the proceedings that have taken place, up to and including the judgment; and must contain an information or charge against the defendant, a summons or notice, in order that he may appear and make his defence, his appearance or non-appearance, his confession or defence, and so much of the evidence as is necessary to sustain the charge or defence. (Paley on Convictions 65; 1 Ward’s Justice 705; 2 Robinson’s Justice 542; Brackett v. State, 2 Tyler 167; Powers v. People, 4 Johns. 292; People v. Miller, 14 Id. 371.) It will not be sufficient to state, that “the offence was duly and fully proved;” for that is to state the result of the evidence, and not the evidence itself. (Rex v. Reed, Doug. 490; Rex v. Lovett, 7 T. R. 122.) And the whole evidence which applies to the charge must be set out, that the court may judge whether sufficient proof. appears, on the face .of it, to sustain every material allegation and to justify the adjudication. (Rex v. Killett, 4 Burr. 3063; Rex v. Vipont, 2 Id. 1165; 2 Rob. Jus. 550; Rex v. Lloyd, 2 Str. 999; Rex v. Theed, Id. 919; Rex v. Smith, 8 T. R, 588; Rex v. Whanford, 5 Id. 489; Rex v. *Dove, 3 B. & Ald. 596; Rex v. Taylor, 2 Chit. 578; Commonwealth v. Hardy, 1 Ash. 411; Mayor v. Mason, 4 Dall. 266; Cumming’s Case, 3 Greenl. 51.) That the design of the record is not merely to state the fact of the judgment, but to show that the proceedings required by justice had been regularly observed, and the sentence legally supported by evidence, is everywhere evinced by the language and sentiments of the ablest judges from the time of Lord Holt, who, himself, on all occasions, regarded the obligation of recording the whole proceedings as a necessary counterpoise against the liability to error or misapplication to which a private and discretionary tribunal is naturally exposed. (Introd. to Paley on Conv. 33.) The same principles which pervaded the English courts, before the revolution, have been regarded in our own courts, since that event. And it has frequently occurred to our courts, in view of the manifold dangers arising from the exercise of a summary and arbitrary jurisdiction, that it was the more necessary for them to assert and maintain the principles on which personal liberty is dependent. The supreme court of Massachusetts, in Chase v. Hathaway (14 Mass. 224), take occasion to say, “It is a fundamental principle of justice, essential to every free government, that every citizen shall be maintained in the enjoyment of his liberty and property, unless he has forfeited them by the- standing laws of the community, and has had opportunity to answer such charges as, according to those laws, will justify a forfeiture or suspension of them.” In the State v. Savannah (Charlt. 235), the courts of Georgia hold this language: “In this country, no person can be injured in his person or property, without an opportunity of defending himself ; he has the right of being confronted with his accusers, and of being apprised of the accusation against him. Audi alteram partem is a maxim of natural justice, dear to the human heart, and associated with every principle of our jurisprudence. A conviction, founded upon * 329 1 6X ^arie accusati°n> ^e most terrible species of -* despotism that the human mind can conceive it is not only a violation of the most obvious dictates of x common law, but it is destitute of every principle by which the social compact is supported.” In Geter v. Commissioners of Tobacco Inspection (1 Bay 357), the courts of South Carolina say: “ The proceedings must be as nearly as possible, according to the course of trials before juries at common law; as these justices or commissioners are, on these occasions, put in the place both of judges and juries. The party accused must be summoned; there must be a specific charge against him; and he must have time and opportunity of being heard in his defence. The witnesses against him must all be on oath, agreeable to the rules of law, and reduced to writing, or, at least, so much as is necessary to the conviction. And, in cases of conviction, there ought to be a record of it, under the hands and seals of the justices or commissioners, in which so much of the testimony must be set forth, as will bring the offender under the terms of the law, and evince that they have not exceeded the powers given them by the law. If this is not done, in such convictions, the common law will break in upon them, and level all their proceedings.” These rules necessarily give the supreme court the opportunity as well as the power to review the proceedings of the inferior magistrate, not only as to jurisdiction and regularity of proceedings, but as to the legality of the judgment which may be pronounced. The supreme court were wrong in saying, in 20 Wend. ■ 106, that there is such nicety in drawing up penal convictions, under the strictness of the common law, that the legislature have in several cases, by express enactment, prescribed forms omitting the common-law requisites. I am not aware, that there is any such law on .our statute books. It is true, that in England such laws [ * 330 have been passed, but only in cases where an appeal has by statute been given to the accused. Where an appeal has not been given, no general form of a record, omitting the common-law ^requisites, will, I apprehend, be found, even in England, where summary convictions number by tens of thousands annually. At all events, there is no such statute in this state, and the rule requiring a record on a summary conviction to be thus full and particular, was a part of the common law at the adoption of the constitution, and is controlling with us, until the legislature shall change it. The rule is not confined to summary convictions, where personal liberty is mainly involved, but extends to all cases of summary proceedings, involving property or liberty, and the distinction sought to be established by the supreme court in 20 Wend. 103, between summary convictions and other summary proceedings, as it can find no reason to sustain it, in the reported case, so it has none in fact, and is not well founded. • I must not be understood to say, that all the proceedings and evidence before the magistrate must be put into the record, as if the adjudication were to be reviewed on a case made on a motion for a new trial, but only so much as will enable the supreme court to exercise its legitimate authority to examine upon the merits, every decision of the magistrate upon a question of law. Being then authorized in this case to look into the proceedings before the judge who granted the discharge, we find a difficulty in the outset. G. W. Stanton & Son, were petitioning creditors for the sum of $242,821.16; that sum consisted of $198,068.88, of general indebtededness, $10,480.56 and $10,471.72 for deficiency on two chancery foreclosures of mortgages, &c., and $20,000 balance due on two judgments, &e. They did not add to their signature to the petition a declaration, pursuant to the statute, that they relinquished to the assignees to be appointed, such mortgages or judgments, for the benefit of all the creditors, and therefore they were not petitioners in respect to the debts so secured. (2 R. S. 36, § 11. All then that they actually signed off was * 3311 $201,868.88, which **was less than two-thirds of -* all the debts. And the judge, consequently, had no authority to grant a discharge. The judgment of the supreme court must, therefore, be reversed, and the discharge declared to be void. Judgment reversed, and proceedings before the county judge annulled. Gridley, J., dissented.