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leave of court they withdrew their claim under the commission, had not passed the stage at which they had a right to make their election." See, also, Watson v. Phoenix Bank, 8 Metc. 217..

Bemis v. Smith, 10 Metc. 194, was an action by an assignee under the insolvent law of 1838, on a demand due to the insolvent, in which the defendant filed, in set-off, a debt due to him from the insolvent. The defendant had proved his debt at the first meeting of the creditors, and presented a petition at the second meeting to have his claim expunged, that he might set it off against the debt due from him; and, at an adjournment of that meeting, he filed a written withdrawal and waiver, substantially in the form used in the case at bar. The master dismissed the petition. At the third meeting a dividend was ordered to the creditors, including the defendant, which the defendant refused to receive, and it remained in the hands of the assignee. It was held that he might set off the debt. The court said: “It has been argued that the defendant, by proving his debt in part before the master, is “precluded from his claim of set-off as to the part proved. But we think otherwise. He acted unadvisedly in proving his claim before the master, but he has withdrawn that claim, so far as he was allowed to do so, and there seems to be no reason why his legal and equitable rights should be barred by a mere mistake.

In Cook v. Farrington, 104 Mass. 212, it was decided that a mortgagee of personal property, who had proved his debt in bankruptcy without disclosing his security, was not barred from claiming the property against a second mortgagee.

The effect of proof of a debt in proceedings under the insolvent law, by a secured creditor, who has not surrendered his security, is considered, and many cases relating to it cited, in Franklin Co. Bank v. Greenfield Bank, 138 Mass. 515. The court says, on page 523: “On equitable principles, under the English and United States bankruptcy laws, which contain statutory provisions similar to those in our statutes, it has been held that if a creditor prove his debt without disclosing his security, or without surrendering it, and act upon his proof in such a manner that the rights of other creditors have been impaired, the creditor may be considered to have waived his security. This court has held the same doctrine when the security was not within the statute, and may perhaps hold it if the security is within the statute, in cases where expunging the proof would not be an adequate remedy."

We see no reason why the same equitable principles, as to the effect upon the security of proof in full of a secured claim, without giving up the secu. rity, should not be applied when the security is within the terms of the statute às are applied when the security is held not to be within the statute, -as when it consists of property not belonging to the insolvent, or of property of the insolvent held as security by one jointly liable with him on the debt proved. In both cases, the right which the assignee or general creditors acquire is an equitable right, to be determined on equitable principles. In the one case the statute provides that the creditor shall not be allowed to prove his debt, but does not prohibit him from offering proof, nor impose a penalty for so doing. In the other case the court will not allow the debt to be proved when the security is in the control of the creditor. Lanckton v. Wolcott, 6 Metc. 305; Richardson v. Wyman, 4 Gray, 553. And it is suggested in Franklin Co. Bank v. Greenfield Bank, ubi supra, that the same rule should be applied when the right to the security is merely equitable and contingent as when a solvent accommodation indorser for the insolvent holds a mortgage from him as indemnity, has not paid the debt. The same rule is applied in administering insolvent estates of deceased persons in the probate court. Bristol Co. Sav. Bank v. Woodward, 137 Mass. 412. The oath required by the statute is in the form prescribed for all cases in making proof of a claim, and, of itself, can be no more than a declaration, which if not acted.on may be con tradicted or explained. We are not considering the effect upon a petition to withdraw the claim, or upon the rights of other parties in the security, of such evidence of an intentional waiver of the security, and election to prove the whole debt, as might be afforded by the oath and proof deliberately made, in view of all the facts, and with full apprehension of the meaning and effect of the act. In the case under consideration, the creditor did not intend to give up his security; and, if he has lost it, it is because his acts in reference to it estop him to claim it as against the assignee. To work an estoppel, some right of the assignee, or of creditors whom he represents, must have been impaired by the acts of the secured creditors in relation to their debt or to the security. The acts which are relied on as having that effect are the proof of the debt, and the voting for assignee. Neither of these affected, injuriously, the rights of the assignee or creditors.

In Hooker v. Olmstead, 6 Pick. 481, which arose in the settlement of the insolvent estate of a deceased person, the creditor not only proved his debt, but took his dividend upon the whole amount, and the court said: “Inasmuch as the creditor filed his claim, generally, with the commissioner, and a distribution was decreed upon an allowance of the whole claim, we think he waived his right under the mortgage."

In New Bedford Inst. for Savings v. Fairhaven Bank, 9 Allen, 175, certain creditors who had security, not within the statute, proved the whole amount of their debt, voted for the assignee, and assented to the discharge of the debtor, and thereby secured his discharge. The judge of insolvency afterwards, on their petition, ordered the claim to be stricken out. They then petitioned to have the security sold, and the proceeds applied upon their debt, and that they should be admitted to prove for the balance. The proceeding in this court was in the nature of an appeal by an unsecured creditor, who had proved his debt, from the decree of the judge of insolvency granting this petition. The court reversed the decree, for the reason that the creditors “first proved their debts, and then made use of their petition as creditors to vote for the discharge of the debtor, and that they have thereby affected the rights of the plaintiff injuriously;" that, acquiring the power to control the vote on the discharge, and exercising the power, and procuring a valid discharge, was a material interference with the rights of the other creditors. The effect of the vote for assignee, which controlled the choice, was not set up in the bill, nor considered by the court.

In Franklin Co. Bank v. Greenfield Bank, ubi supra, the plaintiff and the defendant, two creditors of an insolvent debtor, had the same equitable security, not within the statute. The plaintiff proved its debt in full, against objection, and voted for and controlled the choice of assignee. The defendant did not prove, but procured an order that the property should be sold, and the proceeds applied on its debt, and that it might be admitted as a creditor for the balance. The property was sold accordingly, and it was ordered that the proceeds should be paid to the defendant, and that it should be admitted to prove for the balance. The plaintiff sought to revise this decree of the court of insolvency, asking that it might be admitted to share in the proceeds, or that they might be distributed for the benefit of the general creditors. The principal question was whether the plaintiff, by proving its debt, and voting for and controlling the choice of the assignee, had waived its right to the security, or estopped itself from asserting it, and it was held that it had not, and that it was entitled to share in the proceeds.

That the right of the creditor to the security is affected by the use which he makes of the proof, rather than by the fact that the debt is proved, is illustrated by the consideration that, in New Bedford Inst. for Savings v. Fairhaven Bank, ubi supra, where the creditors lost their security, the proof was expunged by order of the judge of insolvency; and in Franklin Co. Bank v. Greenfield Bank, ubi:supra, the proof appears to have stood, to be corrected on the adjustment of the equities between the parties. In Bemis v. Smith, ubi supra, where the creditor was allowed to use the debt in set-off, the master had refused to order the proof to be expunged, and a dividend had been declared on the debt.

When a creditor who holds security which comes within the terms of the statute, inadvertently, by mistake either of law or fact, proves his whole debt, without disclosing his security, and before he has derived any advantage, or the creditors have suffered any detriment, from his acts, takes proper measures to waive and abandon his proof, and to pursue his rights as a secured creditor, according to law, we do not think that he thereby waives or forfeits his security, or that the unsecured creditors thereby acquire an equitable right to it which can be enforced by the assignee. See In re Hubbard, 1 Low. 190; Ex parte Harwood, Crabbe, 496; In re Jaycox v. Green, 8 N. B. R. 241; In re Clark v. Bininger, 5 N. B. R. 255.

Bill of the assignee dismissed. Petition of creditor disallowed.

(143 Mass. 301)

Davis, Adm'r, 0. NEW YORK & N. E. R. Co. (Supreme Judicial Court of Massachusetts. Middlesex. January 8, 1887.) CONFLICT OF LAWS-ACTION FOR DEATH-INJURY IN ANOTHER STATE- PUB. ST. MASS.

CH. 165, 8 1-SURVIVAL OF ACTION.

Under Pub. St. Mass. C. 165, § 1, an action cannot be maintained in this state by an administrator against a railroad, operating a continuous line in Massachusetts

Connecticut, for injuries received by the intestate through the negligence of the defendant while the intestate was traveling over its road in Connecticut, where the statutes of that state do not provide for the survival of such actions; and especially if their statutes provide for the indictment of a railroad company in such cases, and

for a fine which is for the benefit of certain relatives of the deceased.1 Tort by the plaintiff, as administrator of the estate of Mrs. Ruth L. Brown, to recover damages for personal injuries sustained by her, which resulted in her death. Trial in the superior court, without a jury, before ROCKWELL, J., who ruled that the action could be maintained as an action at common law for personal injuries surviving to the plaintiff as administrator in this commonwealth, under Pub. St. Mass. c. 165, § 1, and the defendant alleged ex. ceptions. The facts are stated in the opinion.

H. E. Bolles and R. M. Saltonstall, for defendant.

The laws of the state of Connecticut were properly determined as questions of fact by the judge who tried the case, and his findings are conclusive. Ames v. McCamber, 124 Mass. 85, 91. It is submitted that this action cannot be maintained. It cannot be maintained as an action at common law; for actio personalis moritur cum persona, (Kearney v. Boston & W. R. Corp., 9 Cush. 108, 109; Hollenbeck v. Berkshire R. R., Id. 480; Cummings v. Bird, 115 Mass. 346; Stebbins v. Palmer, 1 Pick. 71, 78, 79; Wilbur v. Gilmore, 21 Pick. 250, 252; Smith y. Sherman, 4 Cush. 408, 412; Soule y. New York & N. H. R. Co., 24 Conn. 575; Murphy v. New York & N. H. R. Co., 30 Conn. 188;) and it is found as fact that this rule of the common law was in force in Connecticut. The common-law action which the plaintiff's intestate had in her life-time in Connecticut is not made to survive by statute to the plaintiff as her administrator. It does not survive by the statute laws of Connecticut. It does not survive under Pub. St. Mass. c. 165, § 1. See Needham v. Grand Trunk R. R., 38 Vt. 294, 307, opinion of WILSON, J. See, also, Le Forest v. Tolman, 117 Mass. 109; State v. Pittsburgh & C. R. R., 45 Md. 41. When a statute gives a cause of action which does not exist at common law, it has been repeatedly held not to apply to acts committed in another state, especially when, by the laws of the latter state, no such action can be

1 See note at end of case.

maintained there. Statutes like this of Connecticut do not revive in new form the common-law action, but are universally held to create a new cause of action unknown to the common law. Richardson v. New York Cent. R. R., 98 Mass. 85; Whitford v. Panama R. R., 23 N. Y. 470; Blake v. Midland R. R., 10 Eng. Law & Eq. 443. An action, under that statute, could not be maintained in this commonwealth. Richardson v. New York Cent. R. R., supra; Woodard v. Michigan Southern & N. I. R. R., 10 Ohio St. 121. Nor could the plaintiff maintain an action here, under our corresponding statute, (Pub. St. Mass. c. 112, § 212,) for the intestate's death in Connecticut, (Le Forest v. Tolman, supra; Whitford v. Panama R, R., supra; Debevoise.v. New York, L. E. & W. R. R., 98 N. Y. 377; State v. Pittsburgh & C. R. R., 45 Md. 41; Hover v. Pennsylvania Co., 25 Ohio St. 667; Crowley v. Panama R. R., 30 Barb. 99; Beach v. Bay State Co., Id. 433; McCarthy v. Chicago, R. I. & P. R. R., 18 Kan. 46; Connecticut Mut. Life Ins. Co. v. New York & N.H.R. R., 25 Conn. 265, 273.) As these limited statutes create a new cause of action in states where the common-law action is also made to survive by statute, two causes of action exist. Needham v. Grand Trunk Ry. Co., 38 Vt. 294; Com. Y, Metropolitan R. Co., 107 Mass. 236.

In states where the common-law action is not made to survive, of course only the former action for limited damages can be maintained. If the present action can be maintained, the defendant will be made liable to two actions. In order to maintain an action of tort for injury to the person, the act which is the foundation of the action must at least be actionable by the law of the place where it is done.

is done. Le Forset v. Tolman, supra; Phillips v. Eyre, L. R. 6 Q. B. 1, 28-30; Whitford v. Panama R. R., supra; State v. Pittsburgh & C.R.R., supra; Crowley v. Panama R. R., supra. The statute under which it is sought to maintain this action (Pub. St. Mass.c. 165, § 1) does not go merely to the remedy, but to the cause of action. If this action can be maintained, then it must be because our statute gives a cause of action, as well as a remedy upon it; for Connecticut furnishes neither. It is plain, however, on general principles, that the statute gives a new cause of action, and does not merely relate to the remedy. It is radically different from the case where the cause of action is not affected, but the remedy is barred, as in the case of the statute of limitations; and, if the statute is repealed, the original action can be maintained. In such case the cause of action does not die upon the passing of the statute, but the remedy is suspended. See Wilbur v. Gilmore, 21 Pick. 252. If the action is of such a character that it survives, the administrator can maintain it at common law. If he does not, he cannot. Brown & Alger, for plaintiff.

This action survives to the administrator under Pub. St. Mass, o. 165, $ 1. The plaintiff appeals to Pub. St, Mass. The lex loci should not be invoked in this case to defeat the plaintiff. Hutchins v. New England Coal-Min. Co., 4 Allen, 580. This is a personal action, which survives by statute, and may be maintained in any jurisdiction in which property may be attached, or the defendant may be found, so that process may be served upon him. Story, Confl. Laws, SS 543, 554; Peabody v. Hamilton, 106 Mass. 217; Pub. St. Mass. c. 164, § 1; Worthen v. Grand Trunk Ry. Co., 125 Mass. 99 The defendants are estopped from denying liability. By the courtesy of states, the defendants are permitted by the state of Connecticut to enter into contracts for transportation of passengers therein, and the defendants do this in virtue of powers granted by this commonwealth.

DEVENS, J. The defendant is a railroad corporation operating a railroad through Massachusetts and Connecticut as a continuous line by virtue of chapter 289, Acts 1873, and exists. as a corporation by the laws of each of these states. The action is brought by the plaintiff as administrator of the estate of Mrs. Ruth L. Brown for alleged injury to her, which finally resulted in her death by reason of defendant's carelessness, and that of their servants, while she was being conveyed as a passenger over their railroad in Connecticut; the intestate being herself, at the time, in the exercise of due care. The law of the state of Connecticut has been properly determined as a fact by the judge presiding at the trial, and his finding in regard to it is conclusive. Ames v. McCamber, 124 Mass. 85-91. From this it appears “that, by the common law in Connecticut, an action for personal injuries does not survive to the administrator of the person injured; that there is no statute or law in Connecticut by virtue of which a common-law action for personal injuries is revived or made to survive to an administrator of the person injured.” The facts, as they are alleged, “do not constitute a cause of action under the laws of the state of Connecticut, by the administrator in behalf of the intestate's estate, and this action could not be maintained in that state if duly brought by an administrator there.” The administrator may maintain, upon these facts, a special action, penal in its nature, created by the statutes of Connecticut, by which damages recoverable are limited to not more than $5,000, and under which the damages recovered do not become assets of the estate, but are recovered in behalf of, and are to be paid over, in specified proportions, to certain persons not thus entitled to the same according to the laws of distribution.

The plaintiff does not claim to maintain this action as the special one provided by the statutes of Connecticut, nor under the laws of that state. Richardson v. New York Cent. Ry. Co., 98 Mass. 85. He seeks to maintain it under our statute, which provides that, in case of damage to the person, the action shall survive, and may thus be prosecuted by an administrator. Pub. St. c. 165, § 1; Hollenbeck v. Berkshire R. R., 9 Cush. 480. The inquiry is therefore presented whether a cause of action at common law which dies with the person in the state where it accrued, not having been made there to survive by any statute, will survive under and by virtue of the statutes of survivorship of another state; so that, if jurisdiction is there obtained over the person or property of the defendant, judgment may properly be rendered against him or his property. That our statute would furnish a remedy where the cause of action was one recognized by the law of this state as the foundation of an action at common law, although it accrued without the state, it being there recognized as existing, and not discharged or extinguished, will be conceded. It must certainly be the right of each state to determine by its laws under what circumstances an injury to the person will afford a cause of action. If this is not so, a person who is not a citizen of the state, or resorts to another state for his remedy, if jurisdiction can be obtained, may subject the defendant, in an action of tort, to entirely different rules and liabilities from those which would control the controversy were it carried on where the injury occurred. If, by the law of Massachusetts, it is required that a party injured, as in traveling upon a railroad, shall prove, not only the negligence of the defendant, but also that he himself was in the exercise of due care, and jurisdiction may be obtained by an attachment of property of the defendant in another state, the plaintiff might relieve himself of the necessity of proving his own due care, if, by the law of the state to which he has resorted, such proof is not required, and thus put upon the railroad or other defendant, a higher responsibility than is imposed by the state in which it was performing its business. In a similar way, if a traveler upon a steam or horse railroad could not recover in this state for an injury done by carelessness in transporting him, by reason that he was traveling upon Sunday, in violation of the laws of the state, he might, unless the law prescribed in this state is to govern, recover in any state where laws forbidding traveling on Sunday did not exist, if jurisdiction could there be obtained over the defendant or its property. When an injury occurs in another state, which would be the foundation of an action at common law, and it is known that the gen

v.IN.E.no.9452

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