Russo v. Chapin

83 N.E. 308, 197 Mass. 64, 1907 Mass. LEXIS 1168

Opinion

Morton, J.

This is a bill for the cancellation of a bond

given by the plaintiff pursuant to.the provisions of St. 1905, c. 428, on the ground that the statute is unconstitutional and the bond, therefore, void. It is clear that the question of the unconstitionality of the statute can be raised in an action on the bond, and that the plaintiff has, therefore, a remedy at law. The plaintiff, however, insists that the remedy at law is not adequate or complete because he may be subjected to a multiplicity of vexatious suits. But the question of constitutionality may be raised once for all in any action upon the bond, or, if a number of actions are brought at the same time, it can be raised in all of them, and a decision in the plaintiff’s favor on the question of constitutionality in any one action can be pleaded in bar to the prosecution of any and all other actions upon the bond.

There is no doubt that, since St. 1877, c. 178, this court has full equity jurisdiction and that, by virtue thereof, it has power in cases of fraud to declare an instrument void and to compel its cancellation and delivery. Gargano v. Pope, 184 Mass. 571. But this is not such a case. There is no doubt, also, about the jurisdiction of this court in a case involving a multiplicity of suits. But this is not a case to which that doctrine applies. If the statute is constitutional, the plaintiff is liable for separate and independent breaches of the bond, and, as already observed, a judgment in the plaintiff’s favor on the question of constitutionality in one action will settle all others. The result is that the demurrer must be sustained and the bill dismissed. It is not necessary to consider the motion to dismiss.

Demurrer sustained; lili dismissed.