Fish v. Fiske

Equity Practice — Waiver— Creditor’s Bill — Lien — Insolvency of Defendant. The filing of an agreed' statement of facts by the parties to a bill in equity, pending an appeal, and their request that the cause be reserved for the full court on the appeal, the pleadings subsequent thereto, and such agreed facts, are a waiver of all questions of form in regard to the proceedings previously had and the manner of bringing the case before the full court. The plaintiff in a bill in equity under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, § 1, to compel the defendant to sell his seat in a stock exchange and apply the proceeds in payment of the plaintiff’s claim, acquires no lien thereon, and if, pending an appeal, the defendant sells the same and pays over the proceeds to his counsel, and then goes into insolvency, such proceeds will pass to his assignee in insolvency.

Bill in equity, filed December 5, 1887, in this court, under the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, § 1, to compel the defendant to sell and transfer his membership in the Boston Stock Exchange, and to apply the proceeds to the plaintiff’s claim. On December 31, 1888, a decree was entered by a single justice, which recited the defendant’s indebtedness to the plaintiff in the sum of $6,050, and that the defendant had no property that could be reached or taken on execution in an action at law, and ordered him forthwith to sell and transfer such membership in due form, and out of the proceeds of such sale, after satisfying the claims of the Exchange or of members thereof, if any, to pay to the plaintiff the balance remaining, to an amount not exceeding the amount of his claim. From this decree the defendant, on January 25, 1889, appealed to the full court. On March 26, 1889, one Davenport filed a petition, reciting that on March 22,1889, he had been duly appointed the assignee in insolvency of the defendant’s estate, and praying that he might intervene in the case and prosecute the defendant’s appeal for the benefit of creditors, which petition was allowed. On April 18, 1889, Davenport filed a supplemental answer, to which the plaintiff filed a replication on July 16,1890. • Subsequently, on February 18,1891, the plaintiff and the assignee signed and filed an agreement in writing, which recited that the defendant, pending his appeal and before going into insolvency, transferred his membership in the Stock Exchange, and, after satisfying various claims due the members thereof, had left in his hands the sum of $1,547.83, which amount he thereupon paid over to his counsel, in whose hands it still was, subject to the control of the assignee in insolvency, to which sum the plaintiff claimed to be entitled; and that there had been proved against the plaintiff’s estate in insolvency claims amounting to $3,052, besides which there were claims unproved amounting to $3,500, exclusive of the plaintiff’s claim. Field, C. J., at the request of both parties, reserved the case upon the original appeal, the pleadings subsequent thereto, and the agreed statement of facts filed by the parties, for the consideration of the full court, such decree to be entered as justice and equity may require.