Walker v. Maxwell

1 Mass. 79

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1804
• Status: Published

Opinion

The whole Court (Strong, Sedgwick, Sewall, and Thacher, justices) were of opinion that the plea in bar, for the third cause of demurrer assigned, was insufficient and bad;

(1) they said that the plea ought to set forth the statute of Rhode Island, that the Court might see whether the proceedings stated in the plea were authorized by the statute of that state or not; the proceedings stated in the plea being of a particular and peculiar kind, so very diverse from proceedings known at common law; (that law which might be considered as common to both states, and regulating the usual and ordinary proceedings of the courts of justice in that state as well as this;) the Court ought to have the statute shown to them; and the general allegation, that those proceedings were pursuant to the statute of Rhode Island, in such case made and provided, was not sufficient. The counsel for the defendant moved for leave to amend the plea.

B. Whitman, for the plaintiff,

objected to the amendment. He said that, by a rule of this Court, after demurrer joined and argued, the Court never permitted an amendment; but if the Court should think that in such cases they might in their discretion permit an amendment, they would never grant it, except for the purpose of doing substantial justice; that it was obvious from the pleadings, the justice and equity of this case was with the plaintiffs; the defendant himself had negotiated tfce note to Cole-, on which the action was brought in the state of Rhode Island, and was, therefore, the agent in procuring that process against himself, * on which he now relies to bar the demand of the plaintiffs in the present action; that circumstance, he said, afforded pretty strong evidence that the suit in Rhode Island was brought by the collusion of the defendant and Cole; the plea does not allege any notice of the suit in Rhode Island to either of the partners; in the second process in that state the debt is described as due to Chace alone, which in the answer in the first action there is described as due to the partnership. In the common cases of taking the personal property of a tenant in common, and selling the same on an execution, all that can be taken and sold is the part which the judgment-debtor owns; and the vendee acquires that part only, and becomes tenant in common with the other owners; but a chose in action cannot be taken and disposed of in that way ; nor is there any mode by which one joint promisee can transfer his right to a chose in action so as to put his assignee in his place, and make such assignee a joint promisee. Had Cole, therefore, in his suit against Chace, attached the goods of the partners, he could not on his judgment and execution have disposed of the whole, but only of the share in them which Chace might have owned, and the vendee would have become tenant in common of the goods so sold, with the other partners. He concluded by saying that no amendment which the defendant could make, could avail him, because the law would never permit a debt due to three persons who are partners, to be taken by this process of foreign attachment, and holden to satisfy the separate debt of one of the partners; which was the case disclosed by the defendant’s plea; and was in fact the case upon which the defendant must ultimately rely, whatever amendment he might otherwise make in his pleadings.

L. Wheaton, in reply,

said the defendant could prove notice of the suits in Rhode Island to have *been given to the parties; and, therefore, by inserting the proper averment in a new plea,-one objection would be obviated; as to the collusion suggested by the counsel for the plaintiff, the Court would not presume fraud; if the judgment in Rhode Island were fraudulently obtained, the plaintiff might have replied it. Respecting the operation of the judgment upon the debt due to the partnership, he would make no observations; as he did not conceive it proper, under the motion for an amendment, to go into the merits of the case at large. (Sedgwick, J. Is it possible that the mere voluntary declaration of Maxioell and Lyon, that the debt had become the property of Chace alone, and upon which the judgment of the court in Rhode Island condemning the debt due to Chace & Co., for the sole debt of Chace, seems to have been founded, can possibly bind Walker and Eddy, who were neither parties nor privies to that judgment ; even admitting that the judgment in Rhode Island is to be considered as having the force and effect of a domestic judgment ? I clearly think not.) Wheaton said, if the debt could not be so holden upon a process here, under our own law of foreign attachment, the judgment in Rhode Island ought not to avail the defendant.

Bridgham, for the defendant,

contended that the judgment in Rhode Island, so long as it remained in force, was binding on Maxwell and Lyon; they were obliged to appear and answer to the first process in Rhode Island, as they had done; they could not avoid it; and they are compellable to satisfy the judgment which was rendered against them on the second process; if the defendant is not allowed to amend, he must unavoidably be holden to pay the amount of the note declared on, a second time.

The defendant had leave to amend on payment of costs.

B. Whitman and Ellis for the plaintiffs. * L. Wheaton and Bridgham for the defendant.

See ante, p. 96, Holbrook vs. Pratt, where an amendment of the declaration aftei joinder in demurrer was refused. The pleadings have been given at length to show the difference of proceeding in Rhode Island and in Massachusetts upon a process of tbreign attachment.

See 2 East Rep. 260, Cobbett & Al. vs Lord Keith.