Pope v. Kirchner

The Court. Action upon a promissory note; defense, a discharge in insolvency. The points made relate to the validity of such discharge.

1. It is contended that the requisite notice of the adjudication of insolvency was not given. The statute provides that a copy of the order must be published, and in addition that it shall be served either personally or by mail. (See section 7 of the Insolvency Act.) The appellant objects to the publication, and also to the service.

The objection to the publication is as follows: The order which was published is in these words:—

“In the matter of Herman Kirchner, an insolvent debtor.

“ Herman Hirchner having filed in this court his petition, schedule, and inventory in insolvency, by which it appears that he is an insolvent debtor, the said Herman Kirchner is hereby declared,” etc.

It is perfectly apparent from the foregoing that the name “Hirchner” was a mere clerical error. And this appears upon the face of the order. The objection to the publication, therefore, is not well taken.

There are several grounds of objection to the service by mail:—

. (a) It is said thi the affidavit of deposit in the post7 [154]office was insufficient, because it was not signed by the person for whom it was drawn up. The affidavit begins as follows: “Herman Kirchner, being duly sworn, says,” etc. It was signed by “ V. W. Gaskill, Deputy County Clerk,” and the certificate is: “Subscribed and sworn to this twentieth day of April, 1881. John F. Willard, Deputy County Clerk.” The affidavit, therefore, was sworn to by the person who subscribed to it, who was Gaskill. And this being the case, we think that the recital in the affidavit as to “Herman Kirchner being duly sworn ” may be rejected as surplusage, and that the affidavit is to be considered as made by Gaskill.

(b) The language of the affidavit is, that the notice was addressed “one to each of said creditors at his place of business as stated in said schedule.” The address of the creditor in the schedule is given in a column headed “Residence of creditors.” And it is argued that since no place of business is given in the schedule, the statement in the affidavit cannot be true. But in the first place, if the address was correctly given, the mistake of styling it a place of " business” when in fact it was a place of “residence” does not seem to be material. And in the second place, it may be that the party resided at his place of business. There is no evidence that he did not, and the certificate of discharge being prima facie evidence of the regularity of the proceedings, it is to be presumed that such was the case, in the absence of a showing to the contrary.