Goreley v. Butler

• Decision Date: 04 May 1888
• Citation: 147 Mass. 8,16 N.E. 734
• Parties: GORELEY v. BUTLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 8

16 N.E. 734

GORELEY v. BUTLER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 4, 1888

COUNSEL

Benjamin F. Butler and Frank L. Washburn, for defendant.

Claims for damages to person or destruction of goods, not liquidated or adjudicated, are unassignable. Choses in action are unassignable at common law. Gillis' Case, 95 U.S. 407; Coolidge v. Ruggles, 15 Mass. 387; Gardner v Adams, 12 Wend. 297. Actions de bonis as portatis are assignable because, being remedies for property, they survived by St.Edw. III. c. 7; North v. Turner, 9 Serg. & R. 244. That the chose must be a property right, settled in the very celebrated case, much quoted both in this country and in England, of Comegys v. Vasse, 1 Pet. 212. See treaty with Spain dated February 22, 1819, arts. 9 and 11, 8 St. at Large, pp. 258, 260. Injuries to personal property do not pass by assignment, or in bankruptcy. Shoemaker v Keely, 2 Dall. 213; O'Donnel v. Seybert, 13 Serg. & R. 54; Dusar v. Murgatroyd, 1 Wash.C.C. 13; Krumbaar v. Burt, 2 Wash.C.C. 406; Erwin v U.S., 97 U.S. 392; Leonard v. Nye, 125 Mass. 455, this question in part came before this court. That no rights assignable, suable, or presumable accrued to the owner of destroyed property because the government has exacted payment to itself for a wrong done by another nation, unless by provisions of the treaty the reclaiming government has promised to pay to its citizens the claims they have against the defaulting government, and receive the money for that precise purpose, has been fully decided. Rustomjee v. The Queen, 1 Q.B.Div. 487, 2 Q.B.Div. 69; Burnand v. Rodocanachi, 44 Law T. (N.S.) 538. Is the insolvent law, as enforced, constitutional? See Golden v. Prince, 3 Wash.C.C. 313; Railway Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4; Trist v. Child, 21 Wall. 441. Gillis' Case, 95 U.S. 407; Erwin's Case, 97 U.S. 392-397; Spofford v. Kirk, Id. 484. Action in any event does not lie against this defendant. There is no privity of contract or equitable rights between the assignee and the defendant.

W.H.H. Andrews, for plaintiff.

The claim in question passed to the plaintiff in insolvency, and "the right to collect the proceeds adheres to it." Pub.St. c. 157, §§ 44, 46; Leonard v. Nye, 125 Mass. 455; Jones v. Dexter, 125 Mass. 469, and cases cited; Warren v. Thread Co., 134 Mass. 247; Comegys v. Vasse, 1 Pet. 193; Erwin v. U.S., 97 U.S. 392; Phelps v. McDonald, 99 U.S. 298; Barton v. White, 144 Mass. 281, 10 N.E. 840; Grant v. Bodwell, 78 Me. 460, 7 Atl.Rep. 12; Pierce v. Stidworthy, 9 Atl.Rep. 617. The words of the statute, "except such as is by law exempt from attachment," refer only to the particular articles exempted by the statute. Leonard v. Nye, 125 Mass. 468; Barton v. White, 144 Mass. 283, 10 N.E. 840. "The right to indemnity for the unjust capture or destruction of property, whether the wrong-doer be a government or an individual, is clearly within this category." Erwin v. U.S., 97 U.S. 392. The plaintiff has the right to follow the proceeds and recover them of the defendant. Lee v. Thorndike, 2 Metc. 313. The action for money had and received lies to recover of an agent who has received money to which his principal has no right, if he has not paid it over before notice. Garland v. Bank, 9 Mass. 408; Elliott v. Swartwout, 10 Pet. 154; Wilson v. Smith, 3 How. 769; Jefts v. York, 10 Cush. 392, 12 Cush. 196. Where a trust fund has been perverted, the cestui que trust can follow it at law as far as it can be traced. U.S. v. Bank, 96 U.S. 30. There was no element of a donation in this case. Phelps v. McDonald, 99 U.S. 303; U.S. v. Hunter, 5 Mason, 62. The "doctrine" that administration must be taken in the District of Columbia for the due administration of such assets "has never yet been sanctioned by any practice of the government." Wyman v. Halstead, 109 U.S. 657, 3 S.Ct. 417; Taylor v. Bemis, 110 U.S. 42, 3 S.Ct. 441. Should the money pass into the hands of Sally B. Taylor, the plaintiff and creditors of Isaac Taylor would be practically without remedy. Vaughan v. Northup, 15 Pet. 1. Section 52, Rev.St.U.S., relating to the District of Columbia of 1873 and 1874, (page 9,) continues in force the laws of Maryland, etc., as the same existed on the 27th day of February, 1801, except as since modified, etc. The laws of Maryland so continued in force, published in 1811, (volume 2, pp. 471, 472, and 474.) The suggestion of the defendant, that the insolvent law of the state is void, has been settled, sustaining the validity of the law. Ogden v. Saunders, 12 Wheat. 213; Boyle v. Zacharie, 6 Pet. 348.

OPINION

HOLMES J.

So far as appears, the claim of the insolvent for losses by a tender of the Alabama was within the act of congress of June 23 1874, and therefore probably this case is governed by Leonard v. Nye, 125 Mass. 455; Jones v. Dexter, 125 Mass. 469, 471. But it is unnecessary to stop at this point, because, whatever the original nature of the claim, the act of June 5, 1882, had been passed, and proceedings under it had been begun by the insolvent before the dates when he filed his petition in insolvency or the plaintiff was made his assignee. The insolvent act provides that "the assignment shall vest in the assignee all the property of the debtor, real and personal," etc. Pub.St. c. 157, § 46. When the sovereign power has established a claim against itself, or against a fund in its hands, and has provided a tribunal and all necessary machinery for its establishment and collection, such a claim is "property" within the meaning of the act. If the claim is established in pursuance of what would have been an antecedent legal duty on the part of the sovereign, but for its sovereignty, the proposition which we lay down follows a fortiori from decisions like Leonard v. Nye, and Jones v. Dexter, ubi supra, and Comegys v. Vasse, 1 Pet. 193, that some claims against the sovereign will pass in bankruptcy, or insolvency, although the act which recognizes and makes them effectual is not passed until after the assignment. These cases dispose of any general objection that claims against the sovereign cannot be legal rights in a strict juridical sense. Such claims are given all the incidents of property by law, although the continued recognition of them until they can be proved, and the final payment of them, depend upon the honor of the quasi debtor or trustee, i.e., the sovereign, instead of depending upon a superior power, stranger to the undertaking. The English courts, although they have hardly gone so far as the courts of this country, have treated as property, within the English bankrupt act, a pension granted on the retirement of a public officer, (possibly in pursuance of some sort of understanding at the time of his taking office,) which depended for its payment on an annual vote of a colonial legislature. In re Huggins, 21 Ch.Div. 85. In this case, it is suggested, and we agree, that it could not be doubted that bonds of a foreign or of the home government would be property. If now the claim which the statute establishes, instead of being based upon some sort of consideration, is granted as a pure gratuity, as in Heard v. Sturgis, ante, 437, (decided April, 1888,) still, when granted, it is just as absolute a claim. It is to the same extent and in the same sense a legal claim, and it has the same security for being paid, as the other. It depends upon the will of the sovereign no more than the other. It is not like the case of an allowance depending for its continuance on the will of a private individual, who pays it, as in In re Wicks, 17 Ch.Div. 70, or upon the discretion of a subordinate public officer, as in In re Webber, 18 Q.B.Div. 111. It was argued that by force of Rev.St.U.S. § 3477, this claim could not be assigned in insolvency before it was allowed. Assuming that that section applied to claims like the present, (Stevens v. U.S., court of commissioners of Alabama claims, No. 265, February 26, 1883,) it does not apply to assignments in bankruptcy, although upon a voluntary petition, ( Erwin v. U.S., 97 U.S. 392,) and by parity of reasoning it does not apply to assignments in insolvency. If it should be suggested that, although property of the insolvent, it was not property "which he could have lawfully assigned" in person, and therefore was not within the words of the state insolvent act, the answer is, that it is clearly within the general intent of Pub.St. c. 157, §§ 44, 46, and that it is within the specific words, "right of action for goods or...