
    James M. Randall vs. Ira M. Barton, Judge, &c.
    A judge of probate, after receiving and hearing a petition of a creditor for a warrant against an insolvent debtor, pursuant to St. 3838, c. 163, § 19, refused to issue sucn warrant, because " it did not satisfactorily appear that there was, nor that there was not, one hundred dollars due” from the debtor to the petitioner. Held, that this was an adjudication that it did not appear to the satisfaction of the judge that such sum was due from the alleged debtor to the petitioner.
    The St. of 1838, c. 163, does not require that a judge of probate should make a record of his proceedings on a petition for a warrant against a debtor, where the petition is not sustianed. His duty is performed by filing the petition.
    Petition for a writ of mandamus. The petitioner alleged that, on the 17th of August 1843, he had a demand against Abraham G. Randall, to the amount of $ 100 or upwards, foi which a suit might then have been brought, and which was in its nature proveable against the estate of an insolvent debtor. That the goods and estate of said Abraham G. had been attached on mesne process, in a civil action, &c., for the sum of $100 or upwards; and that he had not dissolved the attachment, on or before the last day of the term of the court to which such process was returnable; which last day of said term was before said 17th of August: That the petitioner, on said 17th of August, applied to the respondent, judge of probate for this county, setting forth, in a petition, the facts aforesaid, and praying the respondent to issue a warrant for taking possession of the estate of said Abraham G., according to the provisions of the insolvent law of 1838; but that the respondent then refused, and still, neglects, to issue such warrant, or in any way to act upon the prayer of said petition. Wherefore the petitioner prayed this court to issue their writ of mandamus to the respondent, requiring him to issue his warrant, upon the aforesaid petition, for taking possession of the estate of said Abraham G., and further to proceed thereon according to the statute in such case made. The petitioner also prayed the court to grant him s.uch other and further relief, as justice might require.
    The respondent, after service on him of notice to show cause, &c., made an answer, in which he admitted that the petitioner made application to him, on the 17th of August 1843, as in his present petition is alleged, and that the facts stated in said application appeared to be true, except the allegation therein, that said Abraham G. was indebted to the petitioner in the sum of $ 100 or upwards : [Here the respondent set forth a general statement of the evidence adduced by the petitioner to show that said Abraham G. was indebted to him in said sum:] “ That upon -the ex parte examination of the petitioner, and upon the facts therein disclosed, it did not satisfactorily appear to the respondent that there was, nor that there was not, a balance of $100 due from the said Abraham G. to the petitioner. But it did appear that said balance was a matter in controversy between the parties, which it was proper for a jury to settle in a court of common law. For these reasons, the respondent refused to issue his warrant against the estate of said Abraham G., and he also refused to convoke all persons interested before him, for the purpose of a hearing inter partes, upon said preliminary question of indebtedness; believing he nad no authority so to do. But he received and filed the petition of said James M. Randall, as by the indorsement thereon appears, for the purpose of saving the rights of all persons concerned.”
    The respondent also stated, that it appeared, at said ex parte 
      examination, that the petitioner had brought a suit at law against said Abraham G. to recover of him the balance sc alleged to be due from him, and had arrested his body.
    
      Newton & Washburn, for the petitioner.
    
      J. P. Rogers & Bacon, for the respondent.
   Hubbard, J.

The ground of this application for a mandamus to the judge of probate is, that he refused to adjudicate upon a matter within his jurisdiction and properly brought before him ; and the prayer of the petition is, that he may be required to act in the premises, and grant the relief to which the petitioner is entitled.

The granting of this writ is within the discretion of the court, and it will not be issued unless it clearly appear that the same is necessary to do justice to the party who complains of the injury he has sustained by the omission to grant his original petition.

It is objected to the present application, that it is not sworn to; that it does not appear that the facts set forth in the original petition are now true, however it might have been at the time of the original application; that the prayer is wrong in asking that the judge may be required to issue his warrant, instead of requiring him to adjudicate upon the matter: and there is also an objection to the original petition, that there was not then a subsisting attachment within the meaning of St. 1838, c. 163, <§> 19. But in the conclusion we have arrived at in regard to this application, it is not necessary to consider these objections.

Upon the presenting of an original petition, under the 19th section of the statute, it is the duty of the judge to hear the evidence offered by the petitioner in support of the facts stated in his petition, and to adjudicate upon them; and if they appear to him to be true, and to bring the petitioner within the provisions of the act, then to grant the application ; and if not satisfied of the truth of the same, to dismiss the petition.

In the matter before us, it is objected by the petitioner, that here is no adjudication upon the premises, and that whatever the decision of the judge may be, he is required to decide, and consequently, that the present application should be granted to procure such adjudication.

Upon a careful examination oí the return, we are ot opinion, although we think the same is defectively expressed, that the judge did adjudicate upon the matter of the petition, and did decide that it did not appear to his satisfaction that there was due from the said Abraham G. Randall the sum of $100, and did thereupon dismiss the petition. The judgment rendered was in the following language, as appears by the return “ Upon the eso parte examination of the petitioner, and upon, the facts therein disclosed, it did not satisfactorily appear to this respondent, that there was (nor that there was not) a balance of $100, due from the said Abraham G. to the petitioner.”

We are of opinion that the words “ nor that there was not ” are mere surplusage, and that the judgment .actually passed upon the subject of the application was, that it did not appear to his satisfaction that the sum of $ 100 was due to the petitioner. The petition was, therefore, rightfully dismissed. And although all the reasons, which influénced the mind of the judge, may not appear satisfactory to us, or to furnish in themselves grounds for the conclusion that such a debt was not due to the petitioner, yet because some of the reasons upon which a judgment is founded may be defective, still if there are other reasons assigned for the decision, which is peculiarly within the province of the magistrate to pronounce on an esc parte hearing, we cannot lightly disturb such judgment. And it not appearing to him, upon the evidence presented to him — which is not set out 'n detail in the proceedings — that a debt of $ 100 was due to the petitioner, is a satisfactory reason and ground for his judgment. It seems to us, that upon such a judgment being pronounced, the party, perceiving doubts in the mind of the judge as to the facts, might apply for a further hearing, to give him an opportunity, by the introduction of additional facts, to remove his doubts as to the evidence of the debt. But in this case, no such application was made ; and the judgment therefore remains good.

It has also been said, that the judge should have made a record of his proceedings ; but we see no provision for it in the statute, in cases where the petition is not sustained. His duty is performed by filing the petition, and it is only when the application is granted, and further proceedings are had, and a clerk is appointed, that a record becomes necessary.

The granting of this petition being within the discretion of the court, and there having been an adjudication upon the original petition, we do not sustain the application. And if we had serious doubts whether there was a proper adjudication in this case, still, as it further appears, by the return before us, that the parties now have a suit or suits pending, in which their differences may be tried and determined, and as it does not appear that any other person has made application for this process against the respondent, Randall, we do not think the ends of justice will be promoted by granting the writ prayed for in this instance.

Petition dismissed.  