Roger Williams National Bank v. Hall

Massachusetts Supreme Judicial Court

Roger Williams National Bank v. Hall

35 N.E. 666, 160 Mass. 171, 1893 Mass. LEXIS 37

CourtMassachusetts Supreme Judicial Court

DecidedNovember 28, 1893

StatusPublished

Cited by5 cases

This text of 35 N.E. 666 (Roger Williams National Bank v. Hall) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roger Williams National Bank v. Hall, 35 N.E. 666, 160 Mass. 171, 1893 Mass. LEXIS 37 (Mass. 1893).

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Opinion

Holmes, J.

The question in this case is whether the holder of a partnership note made payable to one partner and indorsed by him to the holder can prove it in insolvency against the estates both of the firm and of the indorsing partner before any dividend is declared on either. The statute is silent. Intimations in favor of the right of double proof are to be found in Borden v. Cuyler, 10 Cush. 476, 477, and in Mead v. National Bank of Fayetteville, 6 Blatchf. C. C. 180, and in the decisions in In re Farnum, 6 Law Rep. 21 (by Judge Sprague), and Ex parte Nason, 70 Maine, 363. The United States Bankrupt Act of March 2, 1867, § 21, U. S. Rev. Sts. § 5074, is construed to allow the right in terms. Emery v. Canal National Bank, 3 Cliff. 507, collecting the cases, and repeating some of the general arguments at length. Formerly an arbitrary rule was worked out by degrees in England that the creditor must elect. Ex parte Rowlandson, 3 P. Wms. 405. Ex parte Moult, Mont. 321; Mont. & Bligh, 28; 1 Deac. & Ch. 44; 2 Deac. & Ch. 419. Goldsmid v. Cazenove, 7 H. L. Cas. 785, 805. But this rule, after being disapproved by the most eminent judges, (Ex parte Bevan, 9 Ves. 223, 225 ; 10 Ves. 107, 109; Story, Part. (7th ed.) §§ 384-386; Eden, Bankruptcy, (2d ed.) 181,) has been done away with by statute in cases like the present. Ex parte Honey, L. R. 7 Ch. 178. In view of the modern decisions and the general agreement of opinion, we think it unnecessary to argue elaborately for the right of a creditor who has required two contracts binding two distinct estates to insist upon both. [172]*172See further Fuller v. Hooper, 3 Gray, 334, 342; Vanuxem v. Burr, 151 Mass. 386, 388, 389; Turner v. Whitmore, 63 Maine, 526, 528; and Miller's River National Bank v. Jefferson, 138 Mass. 111, 113. Decree of court of insolvency affirmed.

W. A. Morgan f F. L. Tinkham, for the appellants. H. H. Bennett, for the appellee.

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Holmes, J.

The question in this case is whether the holder of a partnership note made payable to one partner and indorsed by him to the holder can prove it in insolvency against the estates both of the firm and of the indorsing partner before any dividend is declared on either. The statute is silent. Intimations in favor of the right of double proof are to be found in Borden v. Cuyler, 10 Cush. 476, 477, and in Mead v. National Bank of Fayetteville, 6 Blatchf. C. C. 180, and in the decisions in In re Farnum, 6 Law Rep. 21 (by Judge Sprague), and Ex parte Nason, 70 Maine, 363. The United States Bankrupt Act of March 2, 1867, § 21, U. S. Rev. Sts. § 5074, is construed to allow the right in terms. Emery v. Canal National Bank, 3 Cliff. 507, collecting the cases, and repeating some of the general arguments at length. Formerly an arbitrary rule was worked out by degrees in England that the creditor must elect. Ex parte Rowlandson, 3 P. Wms. 405. Ex parte Moult, Mont. 321; Mont. & Bligh, 28; 1 Deac. & Ch. 44; 2 Deac. & Ch. 419. Goldsmid v. Cazenove, 7 H. L. Cas. 785, 805. But this rule, after being disapproved by the most eminent judges, (Ex parte Bevan, 9 Ves. 223, 225 ; 10 Ves. 107, 109; Story, Part. (7th ed.) §§ 384-386; Eden, Bankruptcy, (2d ed.) 181,) has been done away with by statute in cases like the present. Ex parte Honey, L. R. 7 Ch. 178. In view of the modern decisions and the general agreement of opinion, we think it unnecessary to argue elaborately for the right of a creditor who has required two contracts binding two distinct estates to insist upon both. [172]*172See further Fuller v. Hooper, 3 Gray, 334, 342; Vanuxem v. Burr, 151 Mass. 386, 388, 389; Turner v. Whitmore, 63 Maine, 526, 528; and Miller's River National Bank v. Jefferson, 138 Mass. 111, 113. Decree of court of insolvency affirmed.

W. A. Morgan f F. L. Tinkham, for the appellants. H. H. Bennett, for the appellee.

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35 N.E. 666, 160 Mass. 171, 1893 Mass. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roger-williams-national-bank-v-hall-mass-1893.

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