Grew v. Breed

53 Mass. 363

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1847
• Status: Published

Opinion

Wilde, J.

The question is, whether the decree mentioned in the bill, that the insurance company should pay $4465-84 to C. P. and B. R. Curtis, solicitors of the plaintiffs in the former bill, can be now enforced against the said company and Andrews Breed, one of the defendants, their debtor. It is objected, that although the court had jurisdiction in the original suit, it is not extended to this suit, which is on a new bill. It is true that this is a new bill; and so are bills of revivor and other bills. But it is not strictly original, “A bill for this purpose,” (to carry into execution the judgment of a court of equity,) says Lord Redesdale, “is, generally, partly an original, and partly a bill in the nature of an original bill, though not strictly original; and sometimes it is likewise a bill of revivor, or a supplemental bill, or both.” Mitf. PI (3d ed.) 76. But however this bill may be denominated or defined, it is certainly founded on the decree of the court in the former suit; and the sole question is, whether we have authority to cause it to be done in the form prayed for.

The objection is, that a chose in action is not subject to the process of sequestration. But on examining the English authorities, we do not find it so settled. Daniell, aftei reviewing the authorities, considers the rule of equity upon the point to be uncertain. 2 Daniell Ch. Tract. 1262. The authorities are also reviewed in Johnson v. Chippindall, 2 Simons, 55; and it is there intimated, that choses in action may be reached by bill, for the purpose of subjecting them to sequestration. The vice chancellor said, “ I find no instance in which the court has compelled a third party to pay in a chose in action, without a bill, where any resistance has been made by the holder of the chose in action.” So in Francklyn v. Colhoun, 3 Swanst. 309, Lord Eldon said, “ the true question is, whether this chose in action can be taken by this sequestration, or whether there must not be some proceeding in aid of the sequestration.” In Wilson v. Metcalfe, 1 Beavan, 269, Lord Langdale said, “ a chose in action is subject to the process of sequestration; but how the sequestration is to be made effective in respect of choses in action may be a question requiring much consideration. In a clear and simple case, it may be by order only, or a voluntary payment may be protected; in other cases, it may be necessary to resort to an action or suit, under the direction of the court.”

The doctrine maintained by these cases seems to us well founded upon principle; and it is sustained in the case of White v. Geraerdt, 1 Edw. Ch. 336, and in Devoe v. Ithaca & Oswego Rail Road Co. 5 Paige, 521.

* The principle is the same on which a creditor’s bill is sustained in favor of a judgment creditor at law, after his remedy there has been fully exhausted. Clarkson v. De Peyster, 3 Paige, 320. Speiglemyer v. Crawford, 6 Paige, 254. And we are authorized by the Rev. Sts. c. 81, <§> 9, to make and award all such judgments, decrees, orders and injunctions, to issue all such executions and other writs and processes, and to do all such other acts as may be necessary or proper to carry into effect the powers which are or may be given us by the laws of the Commonwealth. The court therefore have plenary power to do all such acts as may be necessary and proper to carry into effect all the powers given them by law; and it is manifest, from the case stated in the bill, that unless the bill be sustained, the former decree cannot be executed, and the plaintiffs will be remediless.

Demurrer overruled.

At a subsequent term, the plaintiffs filed a petition, representing to the court that said Andrews Breed had become insolvent, and praying that his note to the insurance company might be ordered to be delivered to said C. P. and B. R. Curtis, to be proved, under the insolvent laws, against said Breed’s estate The court, after notice to the defendants, passed the order which was prayed for, and further ordered, that said C. P. and B. R. Curtis should hold the proceeds of said note, subject to the further order of the court.

See also Hosack v. Rogers, 11 Paige, 603.