Batchelder v. Pierce
| Decision Date | 05 February 1898 |
| Citation | 170 Mass. 260,49 N.E. 310 |
| Parties | BATCHELDER v. PIERCE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
N.B. French, for plaintiff.
Harriman & Daggett and G.P. Wardner, for defendant.
The plaintiff, an assignee in insolvency, brought a suit to recover the value of a stock of goods alleged to have been fraudulently transferred by the debtor to the defendant as a preference. He was allowed to amend his declaration by adding a count for a fraudulent assignment of certain accounts receivable. The defendant's only exception is to the allowance of the amendment. The allowance of the amendment was an adjudication, under Pub.St. c. 167, §§ 42, 85, that the cause of action relied on by the plaintiff when the action was commenced was a fraudulent transfer of the property, which included the accounts, although, perhaps, the plaintiff did not then know what property was covered by the conveyance. If his purpose was to recover the value of everything included in the fraudulent transfer, and if he did not mention the accounts in the original declaration because he did not know until afterwards that they were included, he was properly allowed to amend his declaration. The decision involved a finding of fact. The effect of these sections of the statute in creating "an essential change in the power and practice of the court in allowing amendments" is stated at length by Chief Justice Bigelow in Mann v. Brewer, 7 Allen, 202. See, also, Wood v. Denny, 7 Gray, 540; Freeman v. Creech, 112 Mass. 180; Doran v. Cohen, 147 Mass. 342, 17 N.E. 647; Bank v. Jones, 151 Mass. 454, 24 N.E. 593; Driscoll v. Holt (Suffolk; Feb., 1898) 49 N.E. 309. Pub.St. c. 167, § 85, which makes "the adjudication of the court allowing an amendment conclusive evidence of the identity of the cause of action," leaves the defendant with no right of exception in a case like the present. Mann v. Brewer, 7 Allen, 202; Hutchinson v. Tucker, 124 Mass. 240. The question passed upon by the superior court was merely a question of fact, to the decision of which no exception lies. Exceptions overruled.
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