Crocker v. Stone

61 Mass. 341

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1851
• Status: Published

Opinion

The opinion was delivered at March term, 1852.

Bigelow, J.

*

These are actions of assumpsit, in which one of the defendants, Stone, relies upon his discharge under the insolvent laws, as a defence. The plaintiffs object to the validity of the discharge, upon two grounds. The first objection is, that a majority, in value, of creditors, filed their dissent to such discharge, according to St. 1844, c. 178, § 4. The assignment bore date of the 7th of October, 1847; the dissent to the defendant’s discharge was filed on the 11th of April, 1848. The statute requires such dissent to be signified within six months after the date of the assignment. In the present case, more than six months had expired before it was filed. The statute is explicit, and recognizes no exception. The creditors of the defendant, not having complied with it, cannot invalidate the debtor’s discharge upon this ground."

The remaining objection to the validity of that discharge is of a more serious character. It is, that the third meeting of the creditors was not held within six months from the time of the appointment of an assignee. It appears, by the record of the insolvent proceedings, that the assignee was appointed on the 7th of October, 1847, and the third meeting was called and held on the 15th of April, 1848. It has already been decided in Sanderson v. Taylor, 1 Cush. 87, that the twelfth section of the original insolvent act (St. 1838, c. 163,) requiring the third meeting to be called within six months from the time of the appointment of assignees, was not repealed by St. 1844, c. 178. See also Eastman v. Hillard, 7 Met. 420. In this case, therefore, there was an omission to comply with the requisitions of the statute; more than six months having expired after the appointment of assignees before the third meeting was held. It was also decided in Sanderson v. Taylor, that a discharge was invalid, as against a creditor who had. not proved his claim, if no third meeting had been held; and in Williams v. Robinson, 4 Cush. 529, it was determined that a discharge granted at a meeting of creditors called after the expiration of six months from the appointment of assignees was void. The reasons for that decision are fully stated in the opinion of the court in that case, and it is not necessary to repeat them. We consider it, therefore, an adjudged point, that no discharge is valid, when the third meeting is not held within six months from the time of the appointment of assignees. It has been found necessary, for the due and orderly conduct of insolvent proceedings, and essential to the rights of creditors, to give this construction to the statutes, and it must, therefore, be the rule to govern all cases, although the reasons on which it is founded, may not apply with equal force to particular cases as they arise.

It was urged, at the argument, that the plaintiffs were precluded from invalidating the discharge of the defendant on this ground, because, by proving their claims against the estate of the insolvent, they had waived all irregularity in the proceedings. It is a sufficient answer to this objection, to say, that creditors are not responsible for the regularity of proceedings, which they cannot control, and which are to take place subsequently to their proof of claims. It was not their duty to call the third meeting. They might well suppose that the provisions of the statute would be complied with by those whose duty and interest it was to see them carried into effect. They might well prove their claims, without prejudice to their right to avoid the discharge, if, by future omissions or neglects, it should be rendered invalid. This point is also substantially determined in Morse v. Reed, 13 Met. 62. Nor can it avail the defendant, that it was not his fault that the third meeting was not seasonably called and held. We cannot know who is responsible for the omission. It is sufficient for the decision of this case, that the defendant fails to show a valid discharge. Williams v. Robinson, 4 Cush. 529. It was urged at the argument, that one of the plaintiffs in the second action was the assignee, and that he was, therefore, estopped from objecting to the defendant’s discharge upon the ground before stated. But it is not by the statute made the duty of the assignee, of his own motion, to call the third meeting. He is only bound to call it “ at such time as shall be appointed by the judge.” He cannot be prejudiced in his rights for a neglect or omission of duty which devolved upon others. If it had been shown that the assignee, by any default of his own, had failed to call the third meeting in due season, the argument would have been quite decisive. But so far as the facts in the present case show, the assignee discharged his duty by calling the meeting at the time appointed by the mas ter in chancery Exceptions overruled.

Fletcher, J., did not sit in these cases