Heard on petition for writ of prohibition. George Toste, the complainant, is confined in jail on an execution in an action of trespass for assault and battery. He complained to Louis W. Dunn, Justice of the Eighth District Court, and obtained a citation to his creditor to appear and show cause, if any he had, why the complainant should not be admitted to take the poor debtor's oath. *Page 424 After a full hearing said justice found that the complainant had committed fraud on his creditors by conveying his property, through a third person, to his wife. Because of the commission of this fraud said justice refused the oath to the complainant. Thereafter, Toste complained to a justice of the Sixth District Court, to whom our citation is addressed, setting forth, among other things, that he had once been refused the oath but that there had been a change of circumstances, in this, that he had made an assignment of all of his property for the benefit of his creditors. Thereupon said justice issued a citation to the creditor in question to appear and show cause, if any he had, why the complainant should not be admitted to take the poor debtor's oath. Said creditor's petition prays that we issue our writ of prohibition to said justice prohibiting him from hearing the complaint.
The question is whether the justice had jurisdiction to issue his citation on a complaint disclosing a denial of the oath by another justice and alleging no change in circumstances except an assignment for the benefit of creditors. If said justice had jurisdiction to issue his citation and hear the cause on the complaint, as made, the writ of prohibition, which issues only when an inferior court threatens to exceed its jurisdiction or assumes to accept jurisdiction where none exists, should be refused. If an assignment for the benefit of creditors is not such a change of circumstances as is contemplated by Sec. 11, Chap. 377, G.L., 1923, when the oath has previously been denied on a finding that the complainant has committed fraud by conveying his property in fraud of creditors, said justice is without jurisdiction, and the writ should issue. Said Section 11 is as follows: "If a debtor take out a citation to his committing creditor and have the same served and subsequently withdraw the same, or if upon trial he shall not be admitted to take the oath above prescribed, he shall not be entitled to another citation to the same creditor unless on proof of some change of circumstances after the taking out of the first citation, a statement *Page 425 of which change of circumstances shall be annexed to or recited in the second citation and form a part thereof."
When a complainant is admitted to take the oath he is required to swear or affirm that he has not fraudulently conveyed his property or done any other act whereby his creditors may be defrauded. See Sec. 5 of said Chapter 377.
What change in circumstances did the General Assembly have in mind as sufficient to warrant a second citation and a second hearing after the complainant has been denied the oath on a finding that he has fraudulently conveyed his property? It could not have been the intention that every change, no matter how insignificant, or immaterial to the rights of the parties, would be sufficient to give jurisdiction to the same, or another justice to issue another citation. The language of said Section 11, as contained in the early revisions of our statutes, did not include the provision requiring a change of circumstances before a second citation could be issued; and a person confined on execution was at liberty to make as many applications for the oath as he chose until he obtained a favorable decision. This abuse brought about an amendment requiring "some change of circumstances" before a second citation could be issued.
It seems reasonable to assume that the General Assembly in using the words "some change of circumstances" had in mind such a change as would avoid the facts previously found to exist and found to be sufficient to cause the withholding of the oath. InSantangini v. Bliss, 83 A. 118, on the same state of facts as here presented, this court held that an assignment for the benefit of creditors was not a sufficient change in circumstances to warrant the issuing of another citation after a denial of the oath on a finding that the complainant had conveyed his property in fraud of creditors. The opinion is as follows: "PER CURIAM. Inasmuch as the magistrate, on the hearing of the first petition for the taking of the poor debtor's oath, refused the petition on the ground that the petitioning debtors had committed fraud upon their creditors in the disposition of their property, *Page 426 and as the only change of circumstances now alleged in the second petition of the same debtors is the making of a common law assignment for the benefit of creditors, but it does not appear that the debtors' property disposed of in fraud of their creditors has been brought under the control of the said assignee, or that any other property has been actually conveyed to the assignee for the benefit of creditors, we fail to see how any such change of circumstances has been brought about by said assignment as will warrant the further proceeding by the magistrate in the matter of granting permission to take the poor debtor's oath."
The opinion of the majority is based upon Matteson v.Choquet, 36 R.I. 271, which was decided two years after theBliss case, and which the majority apparently assume overrules the Bliss case.
First of all, in the Chouqet case no mention is made of theBliss case. Second, the facts in the Choquet case were different, as it does not appear that the oath had been refused on a finding that the complainant therein had disposed of his property in fraud of creditors; and at the time the citation was issued in the Choquet case the complainant did not even disclose the fact that he had theretofore been denied the oath. Third, assuming that the facts were the same, the decision in theChoquet case was based squarely upon two decisions neither one of which is an authority in support of the opinion of the majority.
It can hardly be assumed that the justices who decided theChoquet case had, at the time of that decision, forgotten theBliss case, which they had decided within two years, or that they intended to overrule said case without mentioning it.
The Choquet case was decided on the authority of Angell v. Robbins, 4 R.I. 493 and Burdick v. Simmons, 9 R.I. 17. Both the Robbins case and the Simmons case involved imprisonment for debt. In neither case had the person confined on execution done any act whereby any of his "creditors may be defrauded." At the time these cases were *Page 427 decided any debtor liable to be imprisoned for debt could be admitted to take the poor debtor's oath after making an assignment for the benefit of his creditors. The oath could be administered while the original action against him was pending or thereafter, before arrested on execution, or after he had been confined on execution. Chap. 198, Revised Stat. 1857. By making the assignment, the debtor in these cases, although in jail, brought himself within the terms of the statute and apparently was entitled to the oath if he could truthfully swear that he had done no act whereby his creditors may be defrauded. Neither had been guilty of fraudulently conveying his property. In this case the complainant admits that after suit in the original action was commenced against him he conveyed away all of his property without consideration; that he conveyed, without consideration, all of his real estate to a stenographer who on the following day conveyed the same without consideration to complainant's wife and that she has since conveyed said real estate to another person. How does an assignment which brings no property under the control of the assignee remedy the fraud perpetrated in conveying his property?
The only change in circumstances which could possibly avoid the fraud would be the bringing of the property, which was fraudulently conveyed away, under the control of the assignee.Santangini v. Bliss, supra.
The complaint to the justice against whom these proceedings are directed disclosed the fact that complainant had been denied the oath. If he did not know, said justice should have ascertained the ground on which the oath was denied. What is a sufficient change of circumstances under one state of facts may be insufficient when another state of facts is presented. Before issuing his citation said justice should have made an investigation to determine whether he had jurisdiction. If he had done so he would have found that the complainant had fraudulently conveyed away his property; that there was a finding to that effect by another justice and that an assignment for the benefit of creditors *Page 428 was not a change sufficient to give jurisdiction to issue another citation.
The complainant has taken no steps to have the decision of Justice Dunn on the question of fraud reviewed. That question must be taken as res judicata. — Abbott v. InsolventDebtor, 1 Ashmead's Rep. (Pa.) 69. — Even at the hearing before us complainant's counsel admitted facts constituting fraud. He admitted that his client had conveyed away all of his property without consideration and did not contend that the client had done anything to remedy this fraud.
The opinion of Matteson v. Choquet, supra, relied upon by the majority, concludes as follows: "The form of oath set forth in the statute would preclude its administration to a debtor who had done any act whereby any of his creditors may be defrauded." Does anyone seriously contend that a discharge of Toste on facts judicially found to exist — and even now admitted — would be valid?
It is my opinion that the respondent was without jurisdiction to issue his citation on the complaint made to him; that he is without jurisdiction to hear and pass upon the question whether the oath should be administered and that the writ of prohibition should issue.
MURDOCK, J., concurs in this opinion.