We agree with the supreme court of New Hampshire in thinking that the plaintiff in error, by availing itself of the power conferred by the statute, and joining in a trial for the assessment of the damages, is precluded from denying the validity of that provision which prescribes that 50 per cent. shall be added to the amount of the verdict. The act confers a privilege, which the plaintiff in error was at liberty to exercise or not as it thought fit.
Clay v. Smith, 3 Pet. 411, was a case where the plaintiff below, a citizen of the state of Kentucky, instituted a suit against the defendant, a citizen of the state of Louisiana, for the recovery of a debt incurred in 1808; and the defendant pleaded his discharge by the bankrupt law of Louisiana in 1811, under which, according to the provisions of the law, 'as well his person as his future effects' were forever discharged from all the claims of his creditors. Under this law the plaintiff, whose debt was specified in the list of the defendant's creditors, received a dividend of 10 per cent. on his debt, declared by the assignees of the defendant. It was held by this court that the plaintiff, by voluntarily making himself a party to those proceedings, abandoned his extraterritorial immunity from the operation of the bankrupt law of Louisiana, and was bound by that law to the same extent to which the citizens of Louisiana were bound.
In Beaupr e v. Noyes, 138 U.S. 397, 11 Sup. Ct. 296, a similar question was presented. There it was contended on behalf of creditors, the plaintiffs in error, that an alleged assignment was conclusively fraudulent as to them for want of an immediate delivery, followed by an actual and continued change of possession, of the goods assigned; that their right so to treat the assignment, although such right was specially set up and claimed, was denied; and that, consequently, they were denied a right arising under an authority exercised under the United States. But this court said:
'Whether the state court so interpreted the territorial statute as to deny such right to the plaintiffs in error, we need not inquire; for it proceeded, in part, upon another and distinct ground, not involving any federal question, and sufficient in itself to maintain the judgment without reference to that question. That ground is that there was evidence tending to show that the plaintiffs in error acquiesced in and assented to all that was done, and waived any irregularity in the mode in which the assignee conducted the business, and that the question whether they so acquiesced and assented with knowledge of all the facts, and thereby waived their right to treat the assignment as fraudulent, was properly submitted to the jury. The state court evidently intended to hold that, even if the assignment was originally fraudulent as against the creditors, it was competent for the plaintiffs in error to waive the fraud and treat the assignment as valid for all the purposes specified in it. That view does not involve a federal question. Whether sound or not, we do not inquire. It is broad enough in itself to support the final judgment without reference to the federal question.'
In July, 1887, William J. Eustis brought an action in the supreme judicial court of Massachusetts against Bolles and Wilde, wherein he sought to recover the balance on a note remaining unpaid after the receipt of one-half received under insolvency proceedings under a state act passed after the creation of the debt. The defendants pleaded the proceedings in insolvency, their offer of composition, its acceptance by the majority in number and value of their cerditors, their discharge, and the acceptance by Eustis of the amount coming to him under the offer of composition. To this answer the plaintiff demurred. The trial court, which overruled the demurrer, made a finding of facts, and reported the case for the determination of the full court.
The supreme judicial court was of opinion that Eustis, by accepting the benefit of the composition, had waived any right that he might otherwise have had to object to the validity of the composition statute as impairing the obligation of a contract made before its enactment. 146 Mass. 413, 16 N. E. 286.