Stone Leather Co. v. Henry Boston & Sons, Ltd.

Pierce, J. This is a suit in equity under the provisions of R. L. c. 159, § 3, cl. 7, as affected by St. 1910, c. 171, §§ 13,14, and as amended by St. 1910, c. 531, § 2, to reach and apply certain shares of corporate stock to the payment of the non-judgment debt alleged in the plaintiff’s bill to be due to it from the principal defendant. The bill also seeks under St. 1907, c. 582, §§ 26,27,43, to reach and apply certain merchandise “in the hands, possession or control” of the Boston Hide and Leather Company to the payment of the same debt. The principal defendant filed a motion to dismiss, alleging that no service had been made upon it; and also filed a demurrer objecting to the jurisdiction of the court. After a hearing, the motion was denied and the demurrer was overruled. From this order and decree the defendant appealed, and subsequently waived both appeals. The bill was taken -pro confessa against the principal defendant upon its failure to answer over as required by Equity Rule 11 of the Superior Court. The general appearance of the principal defendant, resulting from the waiver of its appeals and the decree pro confessa, upon its failure to answer, concluded it as to all objections as to service or want of service, as also from the [479] claim that the court was without jurisdiction because the plaintiff had an equally plain and adequate remedy at law. Dearth v. Hide & Leather National Bank, 100 Mass. 540. Page v. Young, 106 Mass. 313. Jones v. Keen, 115 Mass. 170. Crocker v. Dillon, 133 Mass. 91,102. The decree pro confessa also operates as an admission of the truth of all material and well pleaded allegations which establish the right, if any, of the plaintiff against the defendants. The plaintiff discontinued as to all defendants except the principal defendant and the Boston Hide and Leather Company. The last named defendant duly filed an answer to the several allegations of the bill, and the case came to a hearing before a justice of the Superior Court and a commissioner was appointed to report the testimony. The presiding judge upon the reported evidence warrantably found that the principal defendant owed the plaintiff the amount with interest set forth in paragraph one of the bill of complaint. Upon sufficient evidence he also found that the principal defendant “at the time of the filing of the bill, did not own or have any financial interest whatsoever in the shares of the capital stock of the Boston Hide and Leather Company;” and upon adequate evidence he further found that “at the time of the hearing on the merits, the defendant Henry Boston and Sons, Ltd., had in storage in certain warehouses merchandise exceeding the plaintiff’s claim; this merchandise was stored in the name of the Boston Hide and Leather Company as agent for Henry Boston and Sons, Ltd., and the entire interest in said merchandise belonged to Henry Boston and Sons, Ltd.” These findings cannot be disturbed; they were abundantly supported by the testimony of witnesses and they are not shown to be due to a misapprehension of the law. Gay v. Ray, 189 Mass. 112. The presiding judge then ruled upon the evidence “that the plaintiff is not entitled to reach and apply the same in payment of its debt,” and reserved and reported the case to the full court under R. L. c. 159, § 29. The ruling was plainly right as regards both species of property. Under St. 1907, c. 582, § 27, “A creditor whose debtor is the owner of a negotiable receipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such receipt or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by [480] ordinary legal process.” There is no testimony that the Boston Hide and Leather Company, as agents for Henry Boston and Sons, Ltd., were given by the warehousemen in whose warehouses the goods were stored receipts in any.form. The burden of proof was upon the plaintiff under St. 1907, c. 582, § 27, to allege and prove, as a condition to its right to come into equity under R. L. c. 159, § 3, cl. 7, the jurisdictional fact that the debtor is the owner of negotiable receipts, as goods held under non-negotiable receipts are subject to attachment and execution under St. 1907, c. 582, § 43, cl. 3. Hoshor-Platt Co. v. Miller, 190 Mass. 285, 286. So far as the testimony justified the drawing of inferences, we are compelled to assume that the presiding judge found that the receipts were non-negotiable receipts, if any were in fact given. In accordance with the terms of the report “a decree is to be entered dismissing the bill without prejudice to the plaintiff bringing an action at law.” So ordered.