Head v. Merrill

Appleton, J.

The supposed trustees in this case were charged by the presiding Judge, before whom the question as to their liability arose, and to his ruling and adjudication exceptions have been duly alleged. It is insisted, that the exceptions are indefinite and present no question of law for the consideration of the Court, as they only refer anew the questions of law and fact upon the disclosure, upon which a decision has already been had for the determination of this Court. Whatever may have been the law before stat. 1849, c. 117, that Act provides, that in all cases under the trustee process, where exceptions are taken to the ruling and decision of a single Judge, “ the whole matter as to the liability of the supposed trustee, embracing the fact and the law, may be reexamined and determined by the full Court when in the opinion of the Court justice shall require j” or, if the action was pending in the District Court, when in the discretion of the Supreme Judicial Court justice shall require. The duty is thus devolved on this Court to ascertain what may be the requirements of justice. To their judgment the matter is referred. The tribunal of ultimate resort cannot form an opinion whether or not justice has been done without reexamining the disclosure to determine for itself both the law and the fact. To exercise a sound judicial discretion, a knowledge of the law and the facts, to which that discretion is to be applied, would seem to be indispensable. The disclosure, therefore, must in all cases be reexamined and is properly before us for that purpose. The cases cited by the counsel for the plaintiff as to the conclusive effect of the judgment of the Court to whose decision exceptions have been taken as to any question of fact arising in the disclosure, would seem no longer applicable.

The disclosure is to be taken as a whole, and from an examination of its contents we are to determine whether or not the trustees are to be charged.

The disclosure in this case is made by the attorney of the corporation, who in his examination makes answer, that according to his best information and belief, and after due inquiry made and personal examination of said company’s ac*590counts with said principal defendant, said company were not owing the said defendant at the time of the service of the plaintiff’s writ on them; that said defendant had rendered services for the said company, but that said company had lawful and just demands against said defendant sufficient to overbalance said defendant’s claim for said services; and in conclusion it is added, “ that said attorney is informed and believes, that on all contracts between said company and said principal defendant, the claim of said company at all times exceeded those of the said defendant against them arising on said contracts.”

The disclosure of a corporation, summoned as trustee, can only be made by their agent or attorney. The agent or attorney who may be appointed for that purpose is not necessarily a member of the corporation, and he must ordinarily rely to a great extent on the books of the company and on the contracts which purport to have been made between such company and other parties. In the disclosure here presented all interrogatories have been answered. No inquiries have been made as to the items, which constitute the mutual indebtedness between the defendant and the trustee. The books and contracts of the company have not been demanded. No inquiries have been made calculated to elicit all the material facts necessary to enable the Court to understand the true relations of the parties. By statute, 1842, c. 31, <§> 33, the answer of the trustee is to be considered as true in deciding how far he is chargable until the contrary is proved. No evidence has been offered to show any error or mistake in the conclusions set forth in the disclosure. The case of Shaw v. Bunker, 2 Mete. 376, is not in point. . There the trustee refused to answer interrogatories deemed pertinent by the Court, though the case had been continued for years to enable him to do it, or to state an account of his dealings with the defendant so far as he kept an account of them. No such facts exist in this case.

The further objection is taken, that the disclosure was not made by an agent or attorney of the company.

*591The disclosure shows that it was not made by the general agent of the company. That however is not necessary. It may be made equally by a special as a general agent; by one not a member as by a member of the company, according to their discretion in the premises. If Mr. Goodenow was not duly authorized, as the plaintiff claims to be the case, the company should not be bound, as upon their disclosure, by one acting without authority. If he was authorized, then, as already has been seen, the company should not have been charged.

The exceptions are sustained. The cause is remanded to the county docket, and there such further inquiries may be made, as the plaintiff in the prosecution of his rights may deem advisable.

Shepley, C. J., and Tenney and Howard, J. J., concurred.