23 N.H. 416 | Superior Court of New Hampshire | 1851
The appellee contends that the order of the judge of probate, extending the time for exhibiting claims to the commissioner, was void, because it was made without notice to him. The statute provides that the judge of probate may proceed without notice in certain enumerated cases, and among others, in the appointment of commissioners on insolvent estates. In certain other cases the statute expressly requires notice. Nothing is said in the statute as to notice of an application for extension of time on a commission.
We do not perceive any substantial reason why the administrator should have notice of such an application, rather than a creditor, whose claim has been allowed. The administrator is interested as trustee for the estate ; and the creditor has a direct personal interest, for if additional claims are allowed under the extended time, his dividend must be proportionally diminished.
No notice is required of the original appointment of commissioner, or of the original limitation of time for presenting claims, and an order to extend the time is on the same subject matter, and in the course of the same proceeding; and no reason occurs
It is undoubtedly a principle of natural justice generally recognized in law, that a party should have notice of a legal proceeding, by which his rights are to be concluded. But neither the appointment of a commissioner, nor the assignment of the times when claims are to be presented, concludes the right of any party. The appointment of commissioner only provide, a tribunal to hear and decide ; and neither the original limitation of the time for presenting claims, nor an extension of the time, concludes the parties any more than a law which establishes the time for holding any other court, or an order adjourning another court to a future day.
The statute requires notice of the times and places fixed for receiving claims; this secures to the administrator and the other creditors, the opportunity of being heard on the merits of claims presented under the extended times, and notice must also be given of the application for acceptance of the commissioner’s report, when objection may be made to the regularity of the order extending the time.
In practice, it would seem that no notice is usually given of an application for an order to extend the commission. Chase’s Probate Directory, 195,196.
The statute does not, either expressly or by implication, require notice ; there is nothing in the nature of the order to be made, which on general principles would make notice necessary. In practice, notice is not usually given; and we are of opinion that the order was duly and regularly made without notice.
The appellee also takes the ground, that, admitting the order extending the commission to be valid, it had no effect on the previous order, accepting the commissioner’s first report; that the
By section 12, of chapter 162, Revised Statutes, it is provided, that “ for sufficient cause, the jndge may allow a further time, or times, to the creditors, not exceeding in the whole, two years from the date of the original commission.”
Where the time is extended under this provision, no new commission issues; it is a mere order extending the time, and in practice the order is endorsed on the original commission, as was done in this case. Chase’s Probate Directory, 196.
.No time is limited for granting the extension, except that the time for exhibiting claims cannot be extended beyond two years from the date of the commission. Of course the time may be extended, as it was in this ease, by an order passed after a report of the commissioner has been accepted. It is clear that the acceptance of the report is not in all cases, and for all purposes, a final decree, establishing the decision of the commissioner upon the claims presented, for express power is given the commissioner to correct his report at any time before a decree of distribution. Rev. Stat., ch. 162, § 15.
At the end of the time limited in the commission, the statute requires the commissioner to make his-report and to present a list of all the claims exhibited for allowance, and to cast interest on the claims allowed, to the expiration of the commission. There is but one commission, and that does not finally expire until the termination of the extended time ; and then the commissioner is to return his list, with interest cast to that date. It is clearly implied that there ought to be but one list, with interest allowed on all the claims allowed up to the same date, and the practice agrees with the views of the statute. Chase’s Probate Directory, 195.
Then again, the judge has power, at any time during the pen
An examination of the different statutory provisions on this subject, makes it quite apparent that the order accepting a commissioner’s report, where time will alloAv an extension of the commission, was not intended to be final and conclusive, but Avas meant to be merely provisional and liable to be superseded by an extension of the time granted, according to the statute ; that all the proceedings under the commission are to be regarded as leading to one decree on the final report of the commissioner, at the expiration of the extended time. Any other construction of the statute would lead to great confusion and inconsistency. We are, therefore, of opinion, that supposing the case furnished evidence which we could regard, of a decree passed September 21, 1847, accepting the commissioner’s first report, that decree was superseded and vacated by the order of December 15,1847, and that the only subsisting decreo on the appellant’s claim, is the decree of May 10,1848, from which this appeal is taken. Many other decrees and orders, passed in the course of the administration and settlement of estates are treated as provisional and interlocutory, and are subject to be revised and corrected until the final decree disposing of the whole subject. Stearns v. Stearns, 1 Pick., 157; Stetson v. Bass, 9 Pick., 27.
We are unable to find any principle on which the evidence stated in the case could be received, to shew that a decree was passed on the twenty-first of September, accepting the commissioners report. The court of probate is made by statute a court of record, and, unless in cases Avhere a foundation is laid for secondary evidence, the orders decrees, and sentences of that court can be proved only by the record, or by duly authenticat
The affidavit of the party of course is not evidence of the decree. In the record of a-decree, which the appellee contends is void, there is a statement that such a previous decree was passed. But this Í3 not a record of the decree; the previous decree referred to, is not recited so that it may appear to the court what it decided, or whether it was valid in form. And the existing record relied on, does not of itself shew any thing respecting the claim of the appellants. If it were material to the appellee’s case, a record might probably now be made of any decree that has been actually passed. But no such record is now produced, nor any copy of such a record, and other evidence is not receivable to prove the decree.
The ground taken by the appellee is that the two reports of the commissioner, and the two orders accepting those reports are separate and independent. If so, how can the creditors, whoso claims were allowed under the first limitation of time, establish their right ? There is no record of the decree accepting the first report ;• and they have no evidence of the decree better than a general statement that there was such a deepee, and that statement contained in the record of an order, which the appellee’s case requires him to maintain is void. If the decree of May, 1848, relates only to the claims presented under the extended time, then there is no record, nor any competent evidence, of a decree allowing the claims presented under the fii’st notices.
The amendment of the declaration filed with the appeal, was properly allowed. No declaration, or other formal statement of the creditor’s claim, is required before the commissioner, and we must understand that the claim presented for allowance to the commissioner, was in fact the same that was proved before the jury. According to our practice, it was open to inquiry before the court of common pleas, whether the demand sought to be recovered, under the amended declaration, was the same that was intended to be proved under the original declaration; and we must intend that this matter of fact was correctly settled, when the amendment was allowed.
When the declaration is filed in the probate court, and the appeal is taken, the proceeding assumes the character of an action against the administrator, representing the insolvent estate. And the general provision of the statute, under which amendments of declarations are allowed, applies to these declarations filed on appeal, in the probate court. The creditor who appeals is required to file a declaration in proper form. So by our statute, in all actions at law, the plaintiff is required to insert in his original writ, a declaration in due form of law. Neither of these provisions were intended to prevent the plaintiff, or appellant, from amending, by changing the form in which he had stated his claim.
It is further objected to the appellant’s claim, that tlhe judgment recovered by the bank, against Nathaniel Parker & Co., was satisfied by a levy of the execution on the separate property of Nathaniel Parker, and that therefore the claim should have been made by him, and not by the partnership.
By the common law, the contract of partners is joint, and not joint and several; and no action could have been maintained on the note, against one of the individual partners, if defence had been made by proper plea. Devaynes v. Noble, 1 Merrivale, 564 ; Colson v. Selby, 1 Esp., 452; Rice v. Shute, 5 Burrow, 2611; Abbot v. Smith, 2 W. Black., 947.
The partnership is to be regarded as a single party on the note, and if there had been other surties, on a question of contribution, the firm would be treated as one party. Chaffee v. Jones, 19 Pick., 260.
The surety is entitled to recover of the principal on payment of the debt; but this is on a contract, implied at the time when the note is made, that the principal will indemify the surety. Appleton v. Bascom, 3 Met., 171.
Where partners are sureties, this contract is not made with each individual partner, but with the firm. There is no implied request by the principal, that the individual partner will pay the
And as to the adjustment of the business among the partners, if one partner pays the partnership debt with his own money, or by a levy on his separate property, he can maintain no action against his partner for this payment; it goes into the partnership account, and must be adjusted on the final settlement of the partnership affairs. Story on Partnership, § 216.
So money, which the partners receive of the principal, for a payment made by them or any one of them, on their partnership contract as sureties, will in like manner be carried to the partnership account.
Where individual sureties have made separate payments for their principal, they cannot join in an action to recover the amount of the several payments. But the rule does not apply to payments made by individual partners in discharge of a partnership liability. The partners are liable only in that capacity; they constitute a single party; there is no contract, express or implied, between the individual partner, and the creditor or the principal debtor. The rule is stated thus in Pearson v. Parker, 3 N. H. Rep., 369. u If there be two persons; and each of them advance money for a third person, they cannot maintain a joint action. But if the interest of several persons be joint, as that of parirnej’s, they may and ought to join.” This case is cited and the doctrine of it approved, in Appleton v. Bascom, 3 Met. Rep., 172.
This objection of the appellee cannot prevail.
Judgment on the Verdict.
