Denny v. Merrifield
| Decision Date | 12 January 1880 |
| Citation | 128 Mass. 228 |
| Parties | William S. Denny v. Lucius Merrifield |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued March 11, 1879
Suffolk. Contract for money had and received. Answer, a composition in bankruptcy under the U.S. St. of June 22 1874, § 17. Trial in the Superior Court, without a jury before Aldrich, J., who reported the case for the determination of this court in substance as follows:
The debt sued on was a valid debt due from the defendant to the plaintiff. The action was commenced on January 31, 1878, bye an attachment of the defendant's property, which was sufficient, and the attaching officer had in his hands, when this action was entered, money enough to pay the plaintiff's claim in full. On February 21, 1878, the defendant filed his petition in bankruptcy in the District Court of the United States for the District of Massachusetts but no hearing was ever had on the petition, nor was the defendant ever adjudged a bankrupt, nor an assignee of his estate chosen. At the time of filing his petition in bankruptcy, the defendant also filed, under the U.S. St. of June 22, 1874, § 17, an offer of composition with his creditors at the rate of twenty per cent, which, after due notice, was accepted by a resolution passed and signed by the requisite majority of his creditors, and, on March 23, 1878, was approved and recorded by the court. The plaintiff's name and the amount of his claim were placed upon the list of the creditors, and proper notices were sent to him. The defendant has fully complied with and carried out the terms of the composition with his other creditors, and duly tendered to the plaintiff a sum which was twenty per cent of his claim, which the plaintiff refused to accept. The plaintiff attended none of the composition meetings, and took no part in any of those proceedings.
On April 16, 1878, the defendant filed with the clerk of the court a bond with sureties, approved by the plaintiff's attorney, to discharge the attachment, the condition of which was that the defendant should, within thirty days after the final judgment in such action, pay to the plaintiff the amount, if any, which he should recover, and that the sureties should also, within thirty days after the entry of any special judgment in such action, pay to the plaintiff the sum, if any, for which such judgment should be entered; and the officer surrendered the property attached to the defendant.
The plaintiff objected to the admissibility of the bond in evidence, but the judge admitted it. The plaintiff contended that he was entitled to a judgment against the defendant, or a judgment against the property attached, or a special judgment, or such a judgment as would enable him to proceed against the sureties on the bond. But the judge ordered judgment for the defendant.
If the bond was inadmissible, and without it the plaintiff was entitled to judgment, such judgment was to be entered. If the plaintiff was entitled to any kind of judgment, such judgment was to be entered; otherwise, judgment for the defendant.
Judgment for the defendant.
F. S. Hesseltine & F. A. Dearborn, (W. W. Carruth with them,) for the plaintiff.
D. Manning, Jr., for the defendant.
The U.S. St. of June 22, 1874, § 17, allows a creditor, holding collateral security for his debt, to share in the proceedings of composition, only to the excess of the debt above the security, or upon surrendering the security for the benefit of the estate; and makes the composition binding upon all debts, whether secured or unsecured, which are duly described in the statement of the debtor, and are of such a nature that they would be barred by a certificate of discharge in bankruptcy. Mudge v. Wilmot, 124 Mass. 493. Leggett v. Barton, 11 Vroom 83. The composition, followed by payment or tender of the sums due according to it, therefore discharged the defendant from personal liability to the plaintiff, and the plaintiff is not entitled to a general judgment.
As no assignment in bankruptcy was ever made, the proceedings did not discharge the plaintiff's attachment, and would not have prevented the plaintiff, if the property attached had remained subject to the lien created by the attachment, from taking special judgment against that property for the purpose of giving effect to that lien. Ray v. Wight, 119 Mass. 426. Sage v. Heller, 124 Mass. 213. Alsop v. White, 45 Conn. 499.
But the attachment having been dissolved and the property surrendered to the defendant upon his giving bond for the payment of any judgment recovered in the action, the property attached is no longer bound by the attachment, and consequently no special judgment against the property can be entered.
The remaining question is, whether a special judgment can be given for the plaintiff for the purpose of charging the sureties on that bond. If the bond...
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