This is a motion to declare that the complainants have elected, or to compel them now to elect, between their suits in equity and their suits at law.
It would seem from the bills in equity of the Quidnick Company, *Page 393 Nos. 1,927 and 1,928,1 and from the statements as to the suits at law, made by the counsel for Chafee at the hearing before this court November 26, 1881, that the Quidnick Company had two claims against Chafee and the A. W. Sprague Manufacturing Company, namely, a claim for about $216,000, due them before the failure of the latter concern, and also a claim accruing after the failure, under a certain contract made at the time of the failure, and for other advances.
The Quidnick Company, in their bill No. 1,928, claimed a lien upon the stock in the Quidnick corporation owned by the Spragues for a debt under the contract, and it is doubtful whether for anything else. This bill has been dismissed.
As the three cases2 were argued together, there was a great deal of confusion, and it requires some care to distinguish the arguments which apply to the different suits and those which apply to neither. And it is true that the majority of the court, in their opinion delivered October 22,3 considered that as the matter had been argued by counsel, as if it had been claimed in the bill, they had a right to decide it, and do say that this debt of $216,000 was paid by accepting the trust mortgage notes. But it is to be noticed that the decree entered November 5,4 while it decides all the other points, does not touch this question, not did either of the forms of decree proposed by the very learned counsel include it.
I do not mean to say that the court were wrong in holding as they did, but if the parties had intended, or the other members of the court supposed that the parties intended, to submit this question to the court, they should have been required by the court to amend their bill to plainly include it, or, at any rate, to have so agreed in writing. Otherwise the court should have refused to entertain it.
But it seems to me that if there were no other reason against ordering the suits at law discontinued, it is a sufficient reason for not making the order now that a motion is pending for rehearing both suits in equity. The complainants are now secured by attachment. *Page 394 The court have ordered the property sold, and have given the complainants a lien on the purchase money for a portion of the lien claimed. If, on a rehearing, the court should be of opinion that the complainants were entitled to a lien for their whole claim, including the old debt, then, in case their claims should amount to more than what might be left of the purchase money, the complainants would have lost their attachment and the remainder of their claim. Whether it might so happen in the present case cannot be foreseen, but I think the principle is sound.
Decree entered December 10, 1881. "That said defendants areentitled to the relief prayed for in their said petitions, andthat said complainant, by proceeding to hearing and decrees insaid equity causes, must be deemed and held to have elected topursue its remedies in equity; and that, therefore, saidcomplainant be, and hereby is ordered forthwith to discontinueits actions at law in said petitions referred to, namely, its twoactions, numbered respectively 1,851 and 1,853, upon the lawdocket of this court at its present term, and its action againstsaid A. W. Sprague Manufacturing Company and Zechariah Chafee,trustee and assignee, now pending in the Supreme Judicial Courtin and for the county of Kennebec, in the State of Maine, andforthwith to dissolve its attachments in its said actions uponthe estate and property of the defendants therein; and that saidcomplainant, its officers, agents, and attorneys be, and herebyare perpetually enjoined from further prosecuting its saidactions at law or either of them."
Pursuant to the decree of November 5, 1881, Chafee, trustee, advertised the trust estates for sale at public auction, certain of them to be sold December 8, 1881, at noon. On the morning of that day certain depositors in the Franklin Institution for Savings presented to one of the judges of the court their petitions praying that the said institution, that the petitioners and such other depositors as should come in, might be made parties to this bill in equity, and that the sale by the trustee, Chafee, might be enjoined. The Franklin Institution for Savings had been in the hands of a receiver since August 11, 1874. The petitions alleged *Page 395 that the Franklin Institution for Savings was a large creditor of the A. W. Sprague Manufacturing Company, and became insolvent on the failure of the latter to meet its obligations; that negotiations were pending for the purchase in bulk of the whole trust estate in the hands of Chafee; that such a sale was for the interest of all parties interested and favored by the depositors of the Franklin Institution, as appeared from their vote at a meeting called to consider the proposals for sale spoken of, and that while these negotiations were carrying on, the auction sales by Chafee, trustee, should be forbidden.
On these petitions an order was made "that the FranklinSavings Bank, Winthrop De Wolf, receiver, Daniel R. Ballou andOrin S. Spencer, for themselves and other depositors in said bankwho may choose to come in, be made parties to the bill ofcomplaint," and that the said Chafee "be, and is herebyenjoined from selling or disposing of said estates described insaid bill and in said petition, or any part or parcel of the samefor the space of ten days from this date."
These orders were entered December 8, 1881, and the respondent, Chafee, at once moved for a dissolution of the injunction against him.
1 i.e. This case and the one next following.
2 i.e. This case and the two next following.
3 In the next following case.
4 Ante, p. 380.