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pany, corporation, organization, or association known as the Milton Mining & Milling Company. After the plaintiff had rested his case, the defendant requested the following ruling: That, upon the evidence, verdict must be entered for the defendant, (1) because no evidence, other than the certificates of stock of the company purporting to be duly issued, and the original contract executed by the parties, has been introduced to prove the existence of any organization, corporation, company, or association that had any right to issue the shares of stock, the price of which the plaintiff seeks to recover in this action; (2) because no evidence, other than the certificates of stock of the company purporting to be duly issued, and the original contract executed by the parties, has been introduced to show the existence of the subject-matter of this contract, the price of which the plaintiff seeks to recover in this action; (3) because the plaintiff has not proven that any corporation or organization was ever duly and legally organized, authorized to issue certificates for the payment of which this action was brought; (4) the plaintiff has not shown that the certificates were duly issued by any corporation or association legally organized. The court refused to give the instructions requested by the defendants, and ruled that the making of the contract by these parties recognized the existence of this corporation and the subject-matter of this contract, and no other proof of the same was necessary. The jury rendered a verdict for the plaintiff, and the defendants alleged exceptions.
G. L. Wentworth, for defendants.
The obligation of proving any fáct lies upon the party who asserts the affirmative of the issue. Crowninshield v. Crowninshield, 2 Gray, 524; Davis Travis, 98 Mass. 222; Boston Relief, etc., Co. v. Burnett, 1 Allen, 410; Estabrook v. Boyle, Id. 413; Stebbins v. Levwolf, 3 Cush. 137; Hill v. Crompton, 119 Mass. 377. To maintain this action, the plaintiff must prove, by atfirmative evidence, every element necessary to make a complete contract with the defendant, and a breach of the same. Davis v. Travis, supra; Boston Relief, etc., Co. v. Burnett, 1 Allen, 410; Stebbins v. Leowolf, 3 Cush. 137. See Barrett . Mead, 10 Allen, 337. The incorporation of a company organized under the laws of this common wealth may be proven by the public acts creating it. Pub. St. Mass.c. 169, § 68; Boynton v.Middlesex Mut. Fire Ins. Co., 4 Metc. 212; Barrett v. Mead, 10 Allen, 337. At common law the proper way to deny the incorporation of a company was nul tiel corporation. Great Beach v. Rogers, 1 Mass. 159; Proprietors of Kennebeck v. Call, Id. 483; Christian Soc. in Plymouth v. Macomber, 3 Metc. 235; Society in Newburyport v. Currier, Id. 417. See Mosler v. Potter; 121 Mass. 89; Com. v. Bakeman, 105 Mass. 53.
W. B. French, for plaintiff.
FIELD, J. The memorandum of purchase signed by the defendants was evidence of an admission by them that there was a “Milton Mining & Milling Company” that issued what were called by the parties shares of stock, which the defendants bought. If there were such shares, the objection does not seem to have been taken that the certificates offered were not genuine or were not certificates of what was generally known and called shares of stock of the Milton Mining & Milling Company, or were not what was intended by the parties to the contract. Exceptions overruled.
(143 Mass. 423)
PARKER and another, Adm'rs, 0. SNOW and another. (Supreme Judicial Court of Massachusetts. Berkshire. January 11, 1887.) APPEAL JUSTICE OF THE PEACE-EXTENSION OF TIME-PUB. St. Mass. Ch. 155, 2% 28, 29.
An appeal under Pub. St. Mass. C. 155, 88 28, 29, from the judgment of a trial justice, is not legally allowed and perfected, and will be dismissed, where it appears that, within 24 hours after judgment in an action, the plaintiff claimed an appeal, but the trial justice, being in doubt whether the plaintiff should recognize or give a bond, extended the time for perfecting the appeal "until such time as he should notify the plaintiffs to appear before him," it being shown that subsequently, upon notice, the plaintiff appeared and recognized with surety, but no notice was given to the defendant. Motion to dismiss the plaintiffs' appeal. Hearing in the superior court. where the presiding judge disallowed the motion, and the defendants appealed, The facts are stated in the opinion.
Dewey & Wright, for defendants.
The steps to be taken by the justice and parties in appeals are prescribed in section 29 of chapter 155 of the Public Statutes. The giving and taking of the recognizance is “an act of a party in court." Martin v. Campbell, 120 Mass. 126. In taking it, the functions of the magistrate seem to be largely judicial. He is to exercise his judgment as a justice. He is to pass on questions in which both parties to the litigation are interested, and on which it is his duty to hear them, if they desire it; and the language of this statute implies the presence of both parties. Worcester v. Schlesinger, 16 Gray, 166; Mississippi v. Johnson, 4 Wall. 475. The defendants think the magistrate could not legally make such a floating and indefinite postponement of his duties, and of his action, to such future time as should suit his convenience or pleasure, and of which only the plaintiffs are to have notice. How are defendants to have certain and legal knowledge of his action? How long shall his continuance run? At what term of the superior court will he require the appeal to be entered? Can he thus carry the case in the air, past the term of the superior court holden next after his judgment? See section 28, c. 155, Pub. St. Allowing the case to run at large in this way is inconsistent with the regularity and certainty that onght to accompany legal proceedings. It would permit a suit at law to be more rambling and uncertain than a town meeting can be. Reed v. Acton, 117 Mass. 384, 391; New Haven v. Rogers, 32 Conn. 226, 227, Burgess v. Tweedy, 16 Conn. 46. The defendants insist that the authority given to "extend the time for recognizing” means from a day certain to a day certain. In our legislation, a certain and fixed time for completing an appeal has been considered important. From the Revised Statutes, at least, down to chapter 236 of Acts of 1877, the time for doing so was unconditionally limited to 24 hours after the entry of the judgment. It can hardly be supposed that the legislature intended to change a period which, for 40 years, had been so brief, definite, and imperative, into one having no limit but the unknown future convenience of a magistrate.
H. C. Joyner, for plaintiffs.
The several amendments of the record of the doings of the trial justice were necessary to show the exact truth, or, in other words, just what was done in the justice's court. To allow these amendments was in accord with the letter and spirit of the statute. Pub. St. c. 167, § 41–44. The case must be considered as we find it, after all these amendments have been allowed and become part of the record. See Acts 1882, c. 95. The sole objection to the doings of the magistrate arises from the trifling circumstance that he extended the time for recognizing generally, without day, and not to a day certain. There is nothing in the statute requiring the magistrate to extend the time to a day certain. Pub. St. c. 155, § 29. It would seem that the only limitation upon the authority here given to the justice is that the extension of time must be reasonable. The trouble in this case arises from no misconduct, laches, or ignorance of the appellants. Parties ought not to suffer because of mistakes and ignorance of the courts established by the commonwealth, and before whom they are obliged to bring causes. Rand v. Wilder, 11 Cush. 294.
MORTON, C. J. The statute provides that a party aggrieved by the judgment of a trial justice, in a civil action, may, within 24 hours after the entry of the judgment, appeal therefrom to the superior court then next to be held in the county; and that no appeal shall be allowed unless the appellant, within 24 hours after the entry of judgment, recognizes to the adverse party with sufficient surety or sureties, to be approved by the adverse party or by the justice, in a reasonable sum, to be fixed by the justice or approved by the adverse party, with condition to enter and prosecute his appeal with effect, and to satisfy, within 30 days of the entry thereof, any judgment which may be entered against him in the superior court upon said appeal, for costs, provided that the justice may, for cause shown, extend the time for recognizing. In determining the sufficiency of the sureties upon such recognizance, the justice may examine, upon oath, the persons offered as sureties, and all other witnesses produced by either party. Pub. St. c. 155, $$ 28, 29.
In the case at bar, the plaintiffs, within 24 hours after the entry of the judgment against them, claimed an appeal, and then offered to recognize, or to give a bond, with sureties. The trial justice, being in doubt whether the plaintiffs should be required to recognize or give a bond, extended the time for perfecting the appeal "until such time as he should notify the plaintiffs to appear before him.” Subsequently, at a time before the sitting of the superior court at which the appeal could be entered, the trial justice notified the plaintiffs to appear before him, and they did appear and recognized, with surety. No notice was given to the defendants. The defendants had an interest in the question of the sufficiency of the sureties in the recognizance, and the statute contemplates that they have the right to be heard upon this question. If the trial justice had extended the time for recognizing to a day certain in the future, this would have been a notice to the defendants, and saved their right to be heard. But an indefinite extension to such time in the future as suited the magistrate's convenience, without any notice to the defendants of the time when he would act upon the recognizance, deprived the defendants of their right to be heard as to the sufficiency of the sureties. A majority of the court are of the opinion that it was not the intention of the statute to authorize a trial justice thus to extend the time of recognizing, and therefore that the appeal in this case was not legally allowed and perfected. Action dismissed.
(143 Mass. 455)
NICHOLS, Assignee, v. SMITH and another.
SMITH and another v. NICHOLS, Assignee. (Supreme Judicial Court of Massachusetts. Suffolk. January 28, 1887.) INSOLVENCY-SECURED CREDITOR-PROOF OF CLAIM-WAIVER OF-PUB. Sr. Ch. 157, 228.
When a creditor of an insolvent debtor, who holds security which comes within the terms of Pub. St. c. 157, 28, 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, he does not thereby waive or forfeit his security, and the unsecured creditors do not thereby acquire an equitable right to it, which can be enforced by the assignee. The first of these actions was a bill in equity, filed March 19, 1886, by the assignee of Michael H. Brennan, an insolvent debtor, to recover possession of five shares of the capital stock of the Phenix Brewing Company, claimed by the assignee to be islegally withheld from him by William Smith and Robert S. Engle, copartners under the firm name of Smith & Engle. The second action was a petition filed May 3, 1886, by Smith & Engle, to revise a decree of the judge of insolvency, refusing Smith & Engle permission to expunge a portion of their proof of claim in the insolvency proceedings of said Brennan. The facts in both cases, as agreed and admitted, showed that said Brennan filed a voluntary petition in insolvency, October 12, 1885, and with said petition an offer of composition; that on said October 12th said Smith & Engle were creditors of said Brennan, their claim amounting to $440; that $200 of said claim was secured by the pledge to them of the said five shares of the Phoenix Brewing Company's stock; that on November 11, 1885, said Robert S. Engle went to the office of the counsel of said Brennan, and there signed and swore to the proof of the claim of Smith & Engle against said Brennan's estate, which said proof had been made out by the attorney of said Brennan, for the whole amount of the said Smith & Engle's claim against said Brennan, without reading said proof, and without seeing what was the amount of the claim inserted in said proof,-said proof of claim being made in the form provided by statute, and containing the clause that the creditor had no security for said sum, or for any part of said sum; that said Engle knew, at the time he made said proof of claim, that said Smith & Engle held the said five shares of stock as security for $200 of their said claim; that said Smith & Engle voted upon the sum of $440 for the acceptance of said Brennan's offer of composition, as did all the creditors of said Brennan who had at the time said offer was confirmed-being 23 in number, and $8,000 in amount-proved their claims, that said offer of composition was never carried out; that said Smith & Engle voted upon the sum of $440 for the election of said Nichols, assignee; and that the result of the vote for assignee would have been the same whether said Smith & Engle had abstained from voting, or had voted against the election of said Nichols; that said Smith & Engle had no fraudulent intent; that said Smith & Engle, on March 22, 1886, duly petitioned the judge of insolvency for leave to expunge their proof of the said $200 of their said claim, but that the judge of insolvency, after hearing, refused to allow them to expunge their said proof, and dismissed their petition; that the third meeting of the creditors of said Brennan took place on the fourteenth day of May, 1886, and that no dividend has been declared in said case; that said Brennan has not received his discharge, nor have Smith & Engle voted upon or given their assent to his discharge. Hearing in the supreme court, before HOLMES, J., who reserved the case for the consideration of the full court.
J. W. Kieth, for Nichols.
The sole question is, what is the legal effect of the act of Robert S. Engle in making the proof of the secured claim of Smith & Engle as if it were unsecured, in the insolvency proceedings of M. H. Brennan? The effect of such a proof, under the English bankrupt law, prior to 1883, was a waiver of security. Ex parte Rolfe, 3 Mont. & A. 305; Ex parte Tierney, Mont. Bankr. 78; Ex parte Hornby, Buck, 351; Ex parte Solomon, 1 Glyn & J. 25. The effect of such a proof, under the United States bankrupt law, was a waiver of the security. Stewart v. Isidor, 1 N. B. R. 485; Wallace v. Conrad, 3 N. B. R. 41; In re Bloss, 4 N. B. R. 147; In re Stansell, 6 N. B. R. 183; In re Hanna, 7 N. B. R. 502; In re Granger, 8 N. B. R.30; In re Jaycox, Id. 241; In re Saunders, 13 N. B. R. 164; In re Lee, 14 N. B. R. 89; Haxtun v. Corse, 4 Edw. Ch. 585; Heard v. Jones, 56 Ga. 271; Ormsby v. Dearborn, 116 Mass. 386. In the settlement of insolvent estates in the probate court in this state, proving a secured claim as though it were unsecured is a waiver of the security. Hooker v.Olmstead, 6 Pick. 481; Bristol Co. Sav. Bank v. Woodward, 137 Mass. 412. The insolvent law of this state formerly provided for the filing of either the assent or dissent of the creditor to the discharge of the debtor. 1848, c. 304, § 9, and 1844, c. 178, § 4. Under these statutes, the assent or dissent, once filed, could not be withdrawn. Beverly Bank v. Wilkinson, 2 Gray, 519; Merriam v. Richards, 3 Gray, 252. Equitable considerations favor the equal distribution of assets. among all creditors. New Bedford Inst. v, Fairhaven Bank, 9 Allen, 175. The effect of a contrary doctrine, in its practical operation, would be that creditors having security would prove their claims, wait to see the outcome of the insolvency proceedings, and then elect the dividend or the security, as the one or the other should prove to be the more profitable. Ex parte Dawes, 1 Rose, 76; Matthews v. Allen, 16 Gray, 596. The proof of the claim, as made by Robert S. Engle, operated as a tender, in law, of the security to the assignee, and the assignee asks that he may receive what has been so tendered to him.
Frank Paul, for Smith and others.
There are no decisions of this court covering a case like the present, where the security is within the terms of the statute. But there are decisions of this court which adopt an equitable rule similar to that embodied in the statuté. See Amory v. Francis, 16 Mass. 308; Hooker v. Olmstead, 6 Pick. 480; Towle v. Bannister, 16 Pick. 255; Farnum v. Boutelle, 13 Metc. 164; Franklin Co. Bank v. Greenfield Bank, 138 Mass. 519; Lanckton v. Wolcott, 6 Metc. 307; Richardson v. Wyman, 4 Gray, 556; New Bedford Inst. v. Fairhaven Bank, 9 Allen, 175. The rule applied in insolvent estates in process of settlement, under the provisions of Pub. St. c. 157, where the security is not within the terms of the statute, may not apply to this case. The defendants' act did not, of itself, operate to discharge their lien. Cook v.
Cook v. Farrington, 104 Mass. 212. The judge of the court of insolvency should have granted the defendants' petition that the proof of the secured portion of their claim might be expunged. Smith v. Warner, 133 Mass. 71; In re Hubbard, 1 Low. 190; Ex parte Harwood, Crabbe, 496. See, also, Bemis v. Smith, 10 Metc. 194; Safford v. Slade, 11 Cush. 29; Morse v. City of Lowell, 7 Metc. 152; Hill v. Hersey, 1 Gray, 586.
W. ALLEN, J. In proceedings under the insolvent law, when a creditor has a pledge of property of the debtor for securing the debt, the property shall, if the creditor requires it, be sold, and the proceeds applied towards the payment of the debt; and the creditor may prove for the residue, or he may release and deliver up the property to the assignee, and prove for the whole debt. “If the property is not so sold or released and delivered up, the creditor shall not be allowed to prove any part of his debt.” Pub. St. c. 157, § 28. Smith & Engle, their security not having been sold or surrendered to the assignee, had no right to prove the secured debt, and it should be expunged, unless the assignee can treat their act as a conclusive election to prove the debt, and a waiver of the security, and an equitable release of it to him. We think that they have done nothing which amounts to a waiver of their security, or which binds them, as an election, to prove their debt, or estops them from claiming to hold their security. They made proof of their debt, and, on its allowance, voted for assignee; but the result of the vote was the same that it would have been had they not voted. The proof was made inadvertently. The statute form had been made out by the counsel of the debtor, and was signed and sworn to by the creditor without reading it, or seeing the amount of the claim inserted in it. The creditors duly petitioned the court of insolvency for leave to withdraw the proof, and filed in that court a written withdrawal and waiver of it. They did not intend to waive their security, nor consciously elect one of two remedies. They have done nothing to change the condition of the assignee or of the other creditors. On the withdrawal of the proof, by leave of court, all parties will be as they would have been had no proof been made, if that was not the effect of the waiver and withdrawal of record by the creditors themselves.
Morse v. City of Lowell, 7 Metc. 152, was a case in which a fiduciary creditor, who had proved his debt in bankruptcy for the purpose of opposing the discharge of the debtor, was allowed by the United States district court to withdraw his proof. The creditor obtained a discharge, and it was held by this court that the debt was not discharged. Mr. Chief Justice SHAW says: “The present was a case of election of remedies for the same right,—the security and collection of a debt, -and we are of opinion that the defendants, when by