McCann v. Randall

• Decision Date: 07 May 1888
• Citation: 147 Mass. 81,17 N.E. 75
• Parties: McCANN v. RANDALL et al. WILLARD WILLARD v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 81

17 N.E. 75

McCANN

WILLARD v. RANDALL et al.

WILLARD v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1888

COUNSEL

Charles Cowley, for defendants.

Defendant Manning appears generally; defendant Randall appears specially only,--both demurring to the jurisdiction. Prayers 1, 2, and 3 of report should have been granted; it appearing that "service by publication only" was made on Randall. Freeman v. Alderson, 119 U.S. 185, 7 S.Ct 165; Wilbur v. Abbot, 60 N.H. 40; Eastman v Dearborn, 63 N.H. 364; Eliot v. McCormick, 141 Mass. 194, 6 N.E. 375. By Rev.St.Me.1883, c. 81, § 103, the note sued on in this case was barred at the expiration of six years from its maturity, unless Randall returned to Maine which he has never done since the expiration of said six years. Drew v. Drew, 37 Me. 389, 392. The Massachusetts statute of limitations governs this case. Pearsall v. Dwight, 2 Mass. 84, 89; Wood, Lim. 17 20; Ang.Lim. 56; Byrne v. Crowninshield, 17 Mass. 55. The note is barred in New York. It was barred in Massachusetts under Gen.St. c. 155, § 1. It was not revived by St.1880, c. 98, re-enacted in Pub.St. c. 197, § 11; for "where a statute of limitations has taken effect, and become a bar, a subsequent alteration of the law of limitations will not operate retroactively, so as to remove such bar." Page v. Melvin, 10 Gray, 210; Dodge v. Insurance Co., 12 Gray, 71; Wright v. Oakley, 5 Metc. 407; Farnam v. Brooks, 9 Pick. 212. The effect of the learned judge's assumption is to provide different periods of time within which different classes of citizens must sue, and he therefore erred. Chapter 223, Acts 1883, conferring equity powers on the superior court, is unconstitutional. Randall had no "property, right, title, or interest" in the draft, within the meaning of Pub.St. c. 151, § 1, cl. 11. Spurr v. Scoville, 3 Cush. 578; Moody v. Gay, 15 Gray, 457; Walling v. Beers, 120 Mass. 548, 550; Bodurtha v. Goodrich, 3 Gray, 508, 510; Macomber v. Jaffray, 4 Gray, 82; Wap. Attachm. 468, and cases cited. Prayers three, four, and five should have been granted. Cush. Trustee Process, 12, 13; Buchanan v. Alexander, 4 How. 20; Owen v. Miller, 10 Ohio St. 144; Keyser's Case, 4 Lawr.Dec. 269, 325, and cases cited; Biggs v. Light-Boat, 11 Allen, 162; Case of Giddings, 16 Op.Atty.Gen. 366. Prayers 6 and 8 should have been granted. Prayer 9 should have been granted. Until the draft was paid, the money which it represented remained the money of the United States. A draft has no locality. It is like a patent-right. Carver v. Peck, 131 Mass. 291; Dana v. Bank, 13 Allen, 445; Hancock v. Colyer, 99 Mass. 187. See Hayward v. Clark, 50 Vt. 612. Prayers 5, 6, and 10 should have been granted. Chealy v. Brewer, 7 Mass. 259; Insurance Co. v. Weeks, Id. 438; Rundlet v. Jordan, 3 Greenl. 47; Haven v. Wentworth, 2 N.H. 93; Grant v. Shaw, 16 Mass. 341. The treasurer, from whom Manning received this draft, might at any time recall it, and pay the claim in money. This suit cannot be maintained against Manning. Averill v. Tucker, 2 Cranch, C.C. 544. Manning's lien as Randall's attorney was superior to any right of Randall's creditors. Weed v. Boutelle, 56 Vt. 570, and cases cited. The United States treasury draft is, in law, the same as a promissory note, and is not, therefore, subject to trustee or equitable trustee process, as it cannot be seized and sold on execution. Insurance Co. v. Weeks, 7 Mass 438; Rundlet v. Jordan, 3 Greenl. 47; Cush. Trustee Process, 12; Perry v. Coates, 9 Mass. 537; Andrews v. Ludlow, 5 Pick. 28; Weil v. Raymond, 142 Mass. 206, 213, 7 N.E. 860. Plaintiff has not exhausted his common-law remedies, and hence has no remedy in equity, by creditors' bill or otherwise. Plaintiff's bill must negative such possibility. Travis v. Tyler, 7 Gray, 146; Jones v. Newhall, 115 Mass. 244. The judgment of the court of commissioners of Alabama claims was equivalent to an appropriation by congress to Randall, and no court can intervene to divert that appropriation to any creditor while it exists in the form of a draft to Randall. Carr v. U.S., 98 U.S. 437; Draft Case, 1 Lawr.Dec. 15. Until paid over to Randall, this fund cannot, in any legal sense, be considered a part of his effects. Owen v. Miller, 10 Ohio St. 144; Hansard v. Robinson, 7 Barn. & C. 90; Morrison v. Bailey, 5 Ohio St. 18; Story, Bills, § 419. The order of attachment was void for want of jurisdiction, and disobedience of it is not contempt. Haines v. Haines, 35 Mich. 138; Perry v. Mitchell, 5 Denio, 537; People v. O'Neil, 47 Cal. 109; Brown v. Moore, 61 Cal. 432; In re Morton, 10 Mich. 208; People v. Sturtevant, 9 N.Y. 263; Sparks v. Martyn, Vent. 1; Ex parte Grace, 12 Iowa, 208; Walton v. Develing, 61 Ill. 201; Darst v. People, 62 Ill. 306; Lewis v. Waite, 70 Ill. 25; Dickey v. Reed, 78 Ill. 261; Frewin v. Lewis, 4 Mylne & C. 249; Mooers v. Smedley, 6 Johns.Ch. 28; 1 High, Inj. § 1425, p. 928. If the order disregarded is doubtful as to its validity or scope, the court has no lawful authority to punish the disobedience of it as a contempt. State v. Bridge Co., 18 How. 421; Weeks v. Smith, 3 Abb.Pr. 211; U.S. v. Stanwood, 13 Int.Rev.Rec. 77; In re Cary, 10 F. 622.

E.P. Payson and W.E. Spear, for plaintiff.

The statute of limitations was not a defense under the demurrer or upon the merits. Pub.St. c. 197, § 11; Thomas v Waterman, 7 Metc. 227; Cozine v. Graham, 2 Paige, 181; Sullivan v. Railroad Co., 94 U.S. 806; Langd.Eq.Pl. §§ 111, 129, and cases; Murphy v. Collins, 121 Mass. 7; Knapp v. Abell, 10 Allen, 488; Miller v. McIntyre, 6 Pet. 61; Equity Rule, 21; Putnam v. Dike, 13 Gray, 535; Hapgood v. Watson, 65 Me. 510. The superior court acquired jurisdiction. A case within the court's equitable jurisdiction is within its territorial jurisdiction, if either the defendant or the subject-matter be found within. Cookney v. Anderson, 31 Beav. 452. See Picquet v. Swan, 5 Mason, 35; Bissell v. Briggs, 9 Mass. 468, 473; Eastman v. Dearborn, 20 Reporter, 694; Boswell v. Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U.S. 714; Heidritter v. Oil-Cloth Co., 112 U.S. 294, 5 S.Ct. 135; Story, Confl.Law, § 549. That a bill to apply to a valid claim property not attachable at law of a defendant not within the reach of the court, without a judgment at law or circumstances of fraud or trust, is within the equitable jurisdiction, was asserted by Lord HARDWICKE, (Anon., 1 Atk. 19; Kinaston v. Clark, 2 Atk. 205;) and either after judgment, or with circumstances of fraud or trust, by Lord KING, Lord NOTTINGHAM, Sir W. FORTESCUE, M.R., and Lord ELLENBOROUGH, (1686, Smithier v. Lewis, 1 Vern. 399; 1686, Angell v. Draper, Id.; 1718, Balch v. Wastall, 1 P.Wms. 445; 1743, Taylor v. Jones, 2 Atk. 600; 1744, King v. Dupine, Id. 603, and note; 1749, Horn v. Horn, Amb. 79; 1758; Partridge v. Gopp, Id. 596; 1807, Scott v. Scholey, 8 East, 467;) but doubted or denied in, 1790, Dundas v. Dutens, 1 Ves.Jr. 196; 1794, Caillaud v. Estwick, 2 Anstr. 381; 1799, Simmonds v. Kinnaird, 4 Ves. 735; 1802, Nantes v. Corrock, 9 Ves. 189; 1811, Guy v. Pearkes, 18 Ves. 196; 1810, M'Carthy v. Goold, 1 Ball & B. 387; 1812, Grogan v. Cooke, 2 Ball & B. 233,--by Lord THURLOW, Lord LOUGHBOROUGH, Lord ELDON, and Lord MANNERS; and also by Lord BROUGHAM, in parliament, in 1828. A foundation for the negative view is found in the want of process in equity, by Lewin, Trusts, (Ed. 1885,) 796. But if the origin of the court of chancery is correctly traced by Mr. Spence (Eq.Jur. 325, 337, 338, et seq.) and by Prof. Langdell, (Eq.Pl. §§ 36-43,) Lord HARDWICKE was nearer right than his successors. Positive statutes have embodied his views in England. Spence, Eq.Jr. 295, 392; Lewin, Trusts, 796-799, 804, 815, and cases. In this country the equitable jurisdiction being the same as that of the English chancery, (Wheeling Bridge Case, 13 How. 519; Jones v. Mill Corp., 4 Pick. 507; Fiske v. Insurance Co., 15 Pick. 312,) its only test is the "absence of a plain and adequate remedy at law," (Watson v. Southerland, 5 Wall. 74.) Such absence, when arising from inadequacy of legal process to appropriate property within the jurisdiction, either from its nature or its locus, has been held to confer jurisdiction aside from fraud or trust, ( Bayard v. Hoffman, 4 Johns.Ch. 450; McDermutt v. Strong, Id. 687; Hadden v. Spader, 20 Johns. 554; Edmeston v. Lyde, 1 Paige, 637; Tarbell v. Griggs, 3 Paige, 207; Storm v. Waddell, 2 Sandf.Ch. 510 et seq.; Bigelow v. Society, 11 Vt. 283; Williams v. Hubbard, Walk.Ch. 28; Tappan v. Evans, 11 N.H. 311;) and without a judgment at law, if the debtor be absent, Scott v. M'Millen, 1 Litt. 302; Kipper v. Glancey, 2 Blackf. 356; Peay v. Morrison's Ex'rs, 10 Grat. 149; Farrar v. Haselden, 9 Rich.Eq. 331; Greenway v. Thomas, 14 Ill. 272; Pope v. Solomons, 36 Ga. 541; Russell v. Clark's Ex'rs, 7 Cranch, 89; Pendleton v. Perkins, 49 Mo. 565; Will.Eq.Jur. 237. Express statutes, in many states, as in England, have finally established the jurisdiction under various forms of procedure. St.N.Y.1828; followed, Donovan v. Finn, 1 Hopk.Ch. 67; disagreeing with Hadden v. Spader, supra; Tarbell v. Griggs, supra. See Edmeston v. Lyde, supra; In re Coates, 3 Abb.Dec. 237; 3 Pom.Eq.Jur. 465, § 1415; 3 Rev.St.N.Y.1875, 190, §§ 56, 57; 2 Rev.St. Ohio 1880, (2d Ed. Revised,) § 5464; also 3 Supp.Rev.St.1884, § 5048; Comp.Laws Kan.1885, § 481, p. 665; also, Id. § 53, p. 611 et seq.; Rev.St.Me.1883, c. 77, § 6, subd. 10; Act Ky.Dec. 19, 1796,§ 4; 2 Kent, Comm. 443, note e. Such laws have the approval of the United States supreme court, ( Grignon's Lessee v. Astor, 2 How. 338; Applegate v. Mining Co., 117 U.S. 255, 6 S.Ct. 742; Goodman v. Niblack, 102 U.S. 556,) and of the Massachusetts supreme judicial court, (May...