Binney v. Globe National Bank

Deyens, J. The petition in the case at bar is addressed to the supervisory jurisdiction of this court of all cases arising under the insolvent law, which, “ 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.” Pub. Sts. c. 157, § 15. While the language used is broad enough to include all questions of fact as well as of law, and while, in the exercise of this jurisdiction, the court is not limited to the evidence which was before the Court of Insolvency, but may hear and pass upon other evidence, the application of the party invoking the interference of this court does not bring before it the whole case, but only those points in which he alleges himself to have been aggrieved. Lancaster v. Choate, 5 Allen, 530. The first complaint of the petitioner is, that the alleged notes held by the creditors, the Globe National Bank and the National Bank of the Republic, were not valid claims against her. At the trial, before a single judge of this court, in order to prove the invalidity of these notes, she offered the testimony of George H. Binney, her husband, which was objected to by the respondents. While the evidence was received, in order that the case might be fully reported, should either party desire to appeal, the single judge did not find it necessary to pass upon the admissibility of this testimony, as he was of opinion that, if admissible and fully considered, the bill should still be dismissed. Without discussing the admissibility of this testimony, it showed that the petitioner indorsed these so called notes, held by the two banks, on printed blank forms of notes, which contained nothing but the printed words, which appear by the exhibits produced; that she did so at the request of her husband, who took them, and afterwards (not in her presence) filled up the blanks, and negotiated them for value to the two banks, which discounted them, and were bona fide holders thereofthat she — 578 — received directly no consideration for them, although the proceeds were used to some extent for the support of herself and family; and that she never saw them after she gave them to her husband. It further appeared, by the testimony of her husband, that she knew “ that these notes were to be filled up and used ” by him. Upon a state of facts similar to this, an indorsee who receives such a note for value before maturity, or who discounts it for value after it has been filled up by one to whom it has been intrusted with authority thus to fill up and use it, may ordinarily hold the indorser responsible. Such an instrument, intrusted to the custody of another for use, would make, as between the indorser and an innocent third party, that other the agent of the indorser, nor can it be important whether the filling up is done in the presence of the indorser or subsequently, if then done by his authority. In either case it is his own act, although done by the hand of another, and he is bound by it. Androscoggin Bank v. Kimball, 10 Cush. 373. Nor is the liability of the petitioner affected by the fact that she is the wife of the signer of the note, who filled the blanks therein and caused the same to be discounted, receiving the proceeds thereof. While a promissory note between husband and wife is void between the original parties, an indorser, when sued upon a contract between him and his indorsee, is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his or her own liability. The consideration moving from the party who takes the note with the signatures of the maker and of the indorser is sufficient to support the promise of the latter, and the fact that the indorsement is for the accommodation of the maker affords no defence to the indorser. Kenworthy v. Sawyer, 125 Mass. 28, and cases cited. The authority given to a married woman to make contracts as if she were sole, not only as to her separate property, but as to property of every kind, with any one except her husband, (Pub. Sts. c. 147, § 2,) authorizes her 'to act, when she sees fit to do so, by an agent. The husband may be authorized to act for her as agent, as well as any other person, and within the authority thus given him his acts would bind her as if she acted in person. Coolidge v. Smith, 129 Mass. 554. Arnold v. Spurr, — 579 — 130 Mass. 347. Wheaton v. Trimble, 145 Mass. 345. Frank v. Lilienfeld, 33 Grat. 377. The contention of the petitioner that these blanks were a gift to the husband, or that her signature was a gift to him, which was a nullity, cannot be maintained. So far as the blanks are to be treated as mere pieces of paper, it would seem that they were the property of the husband, according to the'evidence. It is in the power of the wife also, if she chooses, to give her signature for the benefit of her husband. It has been held, under the St. of 1874, c. 184, that a promissory note made by a married woman jointly with her husband, the only consideration being a debt due from him to the payee, would bind her. Major v. Holmes, 124 Mass. 108. In Roby v. Phelon, 118 Mass. 541, it was held that, the husband and wife being incompetent to contract with each other, a note made by her to him was, as between them, wholly void, and his indorsement of it to the plaintiffs could not make it binding upon her, although it might estop him to deny its validity in an action by the indorsees against him. In the case at bar, the wife is in the position of indorser, the note has been transferred to the holders with her consent for value, and she cannot deny its validity as against them. Even assuming, then, but without intending so to decide, that the evidence offered by the petitioner was admissible, proof that the notes when indorsed by the petitioner contained unfilled blanks would not, under the other circumstances proved, invalidate them in the hands of the banks. When the original insolvent law was passed, rendering a person whose goods or estate were attached liable in a certain class of cases to be proceeded against in insolvency, if no bond to dissolve the attachment was given, a married woman could not execute a bond or make a contract, and it may well be that she was not liable to be proceeded against in insolvency if an attachment of her property was made, and not dissolved. St. 1838, c. 163, § 19. It is urged by the petitioner, that the provisions of the Public Statutes, so far as they are the same as pre-existing laws, are to be construed as a continuation thereof, and not as a new enactment; that no act has ever been passed in terms making a married woman liable to be adjudged an insolvent debtor; and that the legislation giving her power to — 580 — make contracts, except with her husband, as if sole, cannot be construed as subjecting her to the provisions and penalties of the insolvent law. But the provisions of the insolvent law are intended largely, perhaps primarily, for the benefit of insolvent debtors, although they are accompanied by provisions, in some cases enforced by penalties, which shall compel a complete surrender of property in order to its equal distribution among creditors. There is certainly no hardship in holding that, when married women have attained all the privileges supposed to attend the right to make contracts freely, they should accept the responsibilities which accompany these rights. The Pub. Sts. c. 157, § 112, which provide that, “ if a person arrested on mesne process in a civil action, . . . founded upon a demand in its nature provable against the estate of an insolvent debtor, has not given bail on or before the return day, ... or if a person whose goods or estate are attached on mesne process, in such action founded upon such contract, has not, before the teturn day of such process, dissolved the attachment in the manner provided by law,” such person may be proceeded against in insolvency, do not eo nomine mention a married woman. She is, however, included within the word “ person,” and it is not important, according to our rule for the construction of statutes, that the pronouns “ he ” and “ himself ” are used in connection with it in other parts of the section. Pub. Sts. c. 3, § 3. An examination of other statutes will show that this word includes prima facie married women as well as single. Thus the Pub. Sts. c. 162, §§ 1, 2, relating to the arrest of debtors, when taken in connection with § 3, show that by the word “ person ” married women would have been deemed to be included, but for their exception therefrom. Again, the fact that married women may become insolvent debtors is clearly recognized in the same chapter. Provision is there made (§§ 6-16) for the enforcement of judgments against female debtors, whether “ unmarried or married,” and § 11 provides for the proceedings which shall be taken if such judgment debtor “ becomes an insolvent debtor under the laws of this Commonwealth.” The argument, that she could not dissolve the attachment of her property by giving a bond, has now ceased to exist, as she is entirely free to make such a contract. By our law, a married woman is sui — 581 — juris as to her own property, except as to dealings with her' husband; otherwise she is put on the same footing as if she were a feme sole; her common law disabilities as to holding and dealing with her property are removed. Pacific National Bank v. Windram, 133 Mass. 175. Jackson v. Von Zedlitz, 136 Mass. 342. We cannot agree that she is not to be treated here as a person fully sui juris, because, as suggested by the petitioner, she may have property without the State which she cannot by the laws of other States fully control, as she may that which is within this Commonwealth. Nor do we deem it necessary now to discuss how far, if at all, a wife might be liable criminally to any penalties of the insolvent law, if committed in the presence and under the presumed coercion of the husband. Pub. Sts. c. 157, § 119. Being included within the general word of description used in the insolvent law, and there being now no reason arising from incapacity to contract or other cause why the law should not be applied to her, she is brought within its terms, subjected to its liabilities, and entitled to its benefits. " Having failed to dissolve an attachment of her property by neglecting, under the circumstances stated in the statute, to give bond, she was liable to be proceeded against under the insolvent law. The declarations in the actions brought respectively by the Globe National Bank and the National Bank' of the Republic were not inserted in the writs upon which the attachments were made, nor were they filed in court until the' return day. No demand was ever made on either bank for a copy of the declaration. It is the contention of the petitioner that she could not be in default, or liable to be proceeded against, for not dissolving attachments, when there was nothing to show, until after the time to dissolve them had expired, that her property was attached in an action “ founded upon á demand in its nature provable against the estate of an insolvent debtor.” In order that a valid attachment may be made, the writ need not contain a declaration, nor any description of the cause of action on which it is intended to declare, other than the name of the form thereof, and the declaration may be filed in the clerk’s office on or before the day on which the writ is returnable, unless an arrest of the person is made. Pub. Sts. c. 167, §§ 7, 8. It was not — 582 — necessary, therefore, to the validity of the attachment, that a declaration should -be inserted in the writ, or filed before the return day. It was sufficient to show to the court, as it was shown, that the attachment was founded upon a demand in its nature provable against the estate of an insolvent debtor. The Pub. Sts. c. 167, § 8, require that where an attachment of property is made upon a writ, and the declaration is not inserted therein, “ a copy thereof shall be furnished to the defendant or his attorney within three days after he has demanded the same in writing of the plaintiff or his attorney.” Of this provision the petitioner did not seek to avail herself. We have no occasion to consider what would have been the effect had such a demand been made and refused. The petitioner further urges that the petition to the Court of Insolvency fails to aver that a service of the writs had been made upon her, and also that the petition of the Globe National Bank was not sufficiently verified by oath. It may be questioned whether defects like these, if they existed, are to be remedied by a petition like that in the case at bar, intended to secure substantial justice, through the supervisory jurisdiction of this court. It is, however, enough to say that the allegation that the suits were duly entered in court, and are still pending, implies that the writs were served on the petitioner; that such service was actually made appears by the agreement of counsel. As to the jurat upon the petition of the Globe National Bank, it was in the form which' has heretofore been held sufficient. O’Neil v. Glover, 5 Gray, 144. American Carpet Lining Co. v. Chipman, 146 Mass. 385. Bill dismissed.