Winchester v. Thayer

Gray, C. J. This bill is filed under the Gen. Sts. c. 118, § 16, by which it is enacted that this court “ shall have a general superintendence and jurisdiction of all cases arising under this chapter; and, except when special provision is otherwise made, may, upon the bill, petition, or other proper process, of any party aggrieved, hear and determine the case as a court of equity.” 1. The Court of Insolvency is a court of record, and as such has power to amend its own records, and the record as made up or amended by direction of the judge is conclusive evidence of the doings of the court; and parol evidence is inadmissible, even in a court authorized to review its decisions by appeal or otherwise, to contradict the record. The plaintiff cannot therefore be permitted to show that the first meeting was not adjourned from October 22 to December 17, as stated in the record of the Court of Insolvency. Gen. Sts. c. 118, §§ 1, 6. Dearborn v. Ames, 8 Gray, 1. Batty v. Fitch, 11 Gray, 184. Marsh v. McKenzie, 99 Mass. 64. Leigh v. Arnold, 5 Cush. 615. 2. It has not been decided in this Commonwealth whether an infant is subject to proceedings under the insolvent laws. Butler v. Breck, 7 Met. 164. Farris v. Richardson, 6 Allen, 118. But when in such proceedings, instituted by a creditor of a partnership of which he is a member, he has been represented by a guardian ad litem, and after coming of age has expressly ratified the partnership and the proceedings, it is difficult to see how he could afterwards avoid them. Hill v. Keyes, 10 Allen, 258. And even if he could avoid the proceedings so far as he is concerned, it is quite clear that his copartners, who were of full age when the proceedings were instituted, cannot. 3. When, as in this case, the general supervisory jurisdiction of this court under the Gen. Sts. c. 118, § 16, is invoked [134] by bill or petition in equity to revise the doings of the Court of Insolvency, the suit in this court, though it is not technically an appeal, and does not of itself vacate or stay the proceedings in the court below, yet is, as was commonly said by Chief Justice Shaw, a petition in the nature of an appeal, and its purpose is to review and correct the decisions of the Court of Insolvency. Eastman v. Foster, 8 Met. 19, 23. Barnard v. Eaton, 2 Cush. 294, 300-302. Harlow v. Tufts, 4 Cush. 448, 451. Lancaster v. Choate, 5 Allen, 530. Hall v. Marsh, 11 Allen, 563, 565. The Court of Insolvency had power, upon the application of a creditor who had proved his debt, and after notice to all persons interested, to vacate the proceedings, if no objection was made by the debtor or by any such creditor; but pending an adjournment the judge could not do more than issue an order of notice on such an application, and he was not required to do that. Gen. Sts. c. 118, §§ 4, 130. The bill in this case shows that the judge refused to entertain the application to vacate the proceedings because it was not presented at a regular meeting, and that before the day arrived to which the meeting stood adjourned that application was withdrawn. If it had been pressed to a hearing, other creditors, at least those who had not executed the indenture, would have had the right to come in and prosecute the proceedings in insolvency. Foster v. oulding, 9 Gray, 50. For this reason, the evidence offered concerning the indenture of trust did not entitle the plaintiff to the relief prayed for, independently of the question argued at the bar, and upon which we express no opinion, as to the effect of the want of a certificate by the trustees that the indenture had been executed by the requisite proportion of creditors to make it operative. 4. The practice, which has prevailed to some extent, and which, not being objected to, has been allowed to pass sub silentio in several reported cases, of making the judge of the Court of Insolvency a defendant in such suit in equity, is irregular, and unsupported by any precedent or analogy in equity pleading. It perhaps had its origin in the fact that in the early years of the insolvent law the application to this court [135] was often in the form of a petition for a writ of mandamus or of prohibition, on the common-law side of the court, in which the magistrate or tribunal whose action is sought to be controlled or restrained is properly made respondent. Kimball v. Morris, 2 Met. 573. Randall v. Barton, 6 Met. 518. Gilbert v. Hebard, 8 Met. 129. Agawam Bank v. Morris, 4 Cush. 99, 102. Connecticut River Railroad v. County Commissioners, 127 Mass. 50, 59 ad fin. This court, in the exercise of its supervisory jurisdiction in equity under the insolvent laws, may doubtless, by interlocutory order or final decree, give such directions to the judge of the Court of Insolvency as the rights of the parties in interest may require. But it is unnecessary for that purpose, and is wholly inconsistent with the principles of equity jurisdiction and practice, that the judge of an inferior court whose proceedings are brought in review should himself be made a party defendant, and be thereby put to the inconvenience of appearing and answering in a cause in the determination of which he has no personal interest. Bill dismissed, with costs.