Bancroft v. Sawin
| Decision Date | 05 January 1887 |
| Citation | 9 N.E. 539,143 Mass. 144 |
| Parties | BANCROFT v. SAWIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James H. Bancroft, for plaintiff.
The memorandum required in Pub.St. c. 126, § 13, was filed in the registry of deeds the same day the bill was filed. Every clause and word of a statute shall be presumed to have been intended to have some force and effect. Opinion of Justices 22 Pick. 573. The word "may" is sometimes construed as imperative, and equivalent to "shall;" but it is only where the context and general purpose of the act or instrument manifestly require it. Opinion of Justices, 11 Pick. 543. It is always to be presumed that the legislature intend the most beneficial construction of these acts when the design is not apparent. PARSONS, C.J., in Richards v Dagget, 4 Mass. 537. See, also, PARSONS, C.J., in Langdon v. Potter, 3 Mass. 221; Thaxter v Jones, 4 Mass. 574; Ayers v. Knox, 7 Mass. 310. See Merchants' Bank v. Cook, 4 Pick. 411; Com. v. Alger, 7 Cush. 89; Worcester Co. v. Schlesinger, 16 Gray, 168; Minor v. Mechanics' Bank, 1 Pet. 46.
Statutes imposing a duty, and giving the means of performing such duty, are to be regarded as mandatory. Veazie v. China, 50 Me. 518; Milford v. Orono, Id. 529; Wendel v. Durbin, 26 Wis. 390. The word "may," in a statute, is to be construed "must" or "shall," where the public interest or rights are concerned, and the public or third persons have a claim de jure that the power should be exercised. Phelps v. Hawley, 52 N.Y. 23; Blake v. Portsmouth, 39 N.H. 435; Schuyler v. Mercer, 4 Gilman, 20; Fowler v. Pirkins, 77 Ill. 271; Wheeler v. Chicago, 24 Ill. 105; People v. Supervisors, etc., 68 N.Y. 114; Bansemer v. Mace, 18 Ind. 27. Words of permission shall, in certain cases, be obligatory where a statute directs the doing of a thing. For the sake of justice the word "may" means the same as "shall." Mitchell v. Duncan, 7 Fla. 21. Where the statute provides for the doing of an act for the sake of justice, or where it clothes a public body or officer with power to do an act which concerns the public interests or the rights of individuals, though the language of the statute be permissive merely, it will be construed as imperative, and the execution of the power may be insisted upon as a duty. People v. Supervisors, etc., 51 N.Y. 401; Ex parte Banks, 28 Ala. 28.
Justices of this court are officers thereof. Pub.St. c. 153, § 2. See In re Norwegian St., 81 Pa.St. 349; People v. Dana, 22 Cal. 11; Tash v. Adams, 10 Cush. 253; Peabody v. Flint, 6 Allen, 57; Pope v. Leonard, 115 Mass. 286. See Phillips v. Rogers, 12 Metc. 405; Plymouth v. Russell Mills, 7 Allen, 438; Forward v. Hampshire, etc., Co., 22 Pick. 462; Pike v. Goodnow, 12 Allen, 472; Evans v. Bacon, 99 Mass. 213; Royal Bank v. Grand Junction, etc., Co., 125 Mass. 490; Boston & M.R.R. v. Bartlett, 10 Gray, 384; Fuller v. Hovey, 2 Allen, 324; Williams v. Hart, 116 Mass. 513; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Merriam v. Boston, C. & F.R.R., 117 Mass. 241.
This bill was seasonably filed within the time prescribed by statute. Van Vronker v. Eastman, 7 Metc. 157. Respondent was presumed to know of the filing of the bill, and of the record of the memorandum in the registry of deeds. Complainant had a right to delay in the matter of taking a subpoena, and respondent has not been damaged by such delay. See Brown v. Buena Vista Co., 95 U.S. 157, 160. Under Rev.St. c. 109, § 17, a person who claims, by force of an assignment, the effects or credits in the hands of one who is summoned as trustee, may appear and maintain his right, although the party summoned makes no mention of the assignment in his answer. Dennis v. Twitchell, 10 Metc. 180; Knights v. Paul, 11 Gray, 225; Boylen v. Young, 6 Allen, 582.
A.S. Pinkerton, for respondent.
In this case the evidence upon which the presiding justice based his decree is not reported, and nothing is before the full court, on appeal, except the question whether the decree is justified by the record. Sparhawk v. Sparhawk, 120 Mass. 392; Mason v. Daly, 117 Mass. 403; Stanley v. Stark, 115 Mass. 261; Mason v. Lewis, 115 Mass. 334, and cases cited. It is presumed that the facts necessary to support the decree were proved at the hearing, and that the presiding justice gave full weight to all the circumstances of the case. If, under the pleadings, it is possible to justify the decree, it should be upheld. Stanley v. Stark, ubi supra; Mason v. Lewis, ubi supra; Reed v. Reed, 114 Mass. 372. A bill may be dismissed upon motion of defendant for want of prosecution, and, in determining whether the bill shall be dismissed, the court considers only the conduct of the parties in the prosecution, and will not enter into the merits of the cause. 1 Daniell, Ch.Pl. & Pr. 809; Aldr.Eq.Pl. & Pr. 219; Stagg v. Knowles, 3 Hare, 244; Wallis v. Wallis, 4 Drew. 466; Hoxey v. Carey, 12 Ga. 544; Stanley v. Stark, ubi supra.
Every step in the prosecution of a cause must be taken within a reasonable time. The record in this case shows a delay of more than two years in applying for a subpoena, and discloses no fact which will excuse the laches of the complainant. The question whether such a state of facts as is disclosed by the record constitutes such laches as to warrant a dismissal of the bill is one to be considered by the justice who made the decree, and is, of necessity, within his discretion. The rule of equity that delay in issuing subpoena is cause for dissolving injunction (West v. Smith, 2 N.J.Eq. 309; Corey v. Voorhies, Id. 5; Hoagland v. Titus, 14 N.J.Eq. 81) is based upon the sound principle that laches of complainant in prosecuting his cause is an injustice to the respondent, and applies to any gross neglect in the conduct in the complainant's case. A delay of more than two years in issuing a subpoena on a bill to redeem from foreclosure of a mortgage is such an abuse of process on the part of the complainant as not to entitle him to the aid of a court of equity.
OPINION
We have no doubt that, in case of gross or improper delay between the time of filing the bill and of the taking out or service of the subpoena, a court of equity, in the exercise of the judicial discretion belonging to it, may refuse its assistance to the plaintiff, and direct the bill to be taken off the file. Such, also, is the plain intimation of several English and Irish decisions. Coppin v. Gray, 1 Younge & C. 205, 209; Boyd v. Higginson, Flan. & K. 603 613; Forster v. Thompson, 4 Dru. & War. 303, 318. The plaintiff does not dispute this as a general doctrine, but contends that, under the statutes applicable to bills to redeem, the plaintiff, after filing his bill, is in court, and is entitled as of right to have the court proceed and ascertain and determine whether any and what sum not in dispute is due on the mortgage. Pub.St. c. 181,§ 28. It was not, however, the intention of this statute to provide that a mortgagor shall be entitled to his remedy of a bill in equity to redeem, if, by the application of legal or equitable rules, he is cut off therefrom; but, rather, to define the method of proceeding in cases where ...
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