Mayhew v. Pentecost

• Citation: 129 Mass. 332
• Parties: Wooster B. Mayhew v. George F. Pentecost
• Decision Date: 10 September 1880
• Court: United States State Supreme Judicial Court of Massachusetts

129 Mass. 332

Wooster B. Mayhew v. George F. Pentecost

Supreme Court of Massachusetts

September 10, 1880

Argued March 14, 1879

Suffolk. Contract, stated in the writ, dated June 8, 1877, to be brought for the benefit of Lewis Coleman. At the trial in the Superior Court, before Pitman, J., the plaintiff introduced evidence tending to prove the following facts:

On March 10, 1873, Mayhew paid the sum of $ 176.34, and on November 19, 1873, the sum of $ 231.25, for the benefit of the defendant, and at his request. On July 3, 1876, the defendant gave to Mayhew the following order: "Treasurer Second Baptist Society: Please pay W. B. Mayhew, Esq., the following sums: $ 176.34, with interest from March 10, 1873 and $ 231.25, with interest from November 19, 1873, for money advanced to me while treasurer of the said society, and charge to me. Boston, July 3, 1876. George F Pentecost."

On July 11, 1876, Coleman lent from his own money to Mayhew the sum of $ 425, and took from Mayhew a borrowed and received memorandum for this sum, with this order as collateral security therefor, upon a statement by Mayhew that the order and the debt which it represented, belonged to his wife as a gift from him for the purpose of enabling her to pay the interest on a mortgage, and the taxes upon the house in which she lived and of which she had the title, and that the money was to be now so applied, and upon the then belief of Coleman that the debt did not belong to the estate. The judge ruled that the gift to the wife was not valid, and held this statement to be immaterial.

It was admitted that, on March 8, 1876, a petition was filed against Mayhew in bankruptcy in the District Court of the United States for the District of Massachusetts; that, on April 18, 1876, Coleman was chosen the assignee in bankruptcy of Mayhew, and an assignment duly made to him of the estate of the bankrupt; and that proceedings under that petition are still pending.

The plaintiff, at the trial, asked leave to file an affidavit of Coleman, in these words: "I, Lewis Coleman, named as plaintiff in interest in this cause, on oath depose and say that the same is prosecuted by me, in the name of Mayhew, not only for my benefit as assignee in fact of the causes of action in the declaration set forth, but also for my benefit as assignee in bankruptcy of said Mayhew, so far as said causes of action may belong to me as assignee in bankruptcy. And I ask to make this affidavit a part of the record, so that the judgment may be conclusive upon me as assignee in bankruptcy, as well as assignee in fact." The defendant objected to the filing thereof. But the judge allowed the same to be filed in the case for the benefit of whom it might concern; ruling, nevertheless, that it could not affect the rights of the defendant in any way, or affect the legal question as to the right of the plaintiff to maintain this action.

The defendant requested the judge to rule that, upon these facts, this action could not be maintained; that the right to recover the sums of money paid by Mayhew for the benefit of the defendant, and the draft which represented it, passed by the assignment in bankruptcy to Coleman; and that suit to recover the same must be brought in the name of Coleman as such assignee. The judge refused so to rule, but ruled that the action might be maintained in the name of the plaintiff for the benefit of the parties in interest, whoever they might be; and the defendant alleged exceptions.

Exceptions overruled.

M. Storey & B. L. M. Tower, for the defendant, cited Kinnear v. Tarrant, 15 East, 622; Beckham v. Drake, 2 H. L. Cas. 579; Hodgson v. Sidney, L. R. 1 Ex. 313; Morgan v. Steble, L. R. 7 Q. B. 611, 614; In re Young, 12 W. R. 537; Herndon v. Howard, 9 Wall. 664; Knox v. Exchange Bank, 12 Wall. 379; Cook v. Lansing, 3 McLean 571; Hodges v. Holland, 19 Pick. 43; Sigourney v. Severy, 4 Cush. 176; Drury v. Vannevar, 5 Cush. 442; Stone v. Hubbard, 7 Cush. 595; Robinson v. Hall, 11 Gray 483; Parks v. Tirrell, 3 Allen 15; Norcross v. Pease, 5 Allen 331; Gay v. Kingsley, 11 Allen 345; Nash v. Nash, 12 Allen 345.

J. H. Benton, Jr., for the plaintiff.

Gray, C. J. Morton & Endicott, JJ., absent.

OPINION

Gray, J.

By the recent bankrupt act of the United States, an assignment in bankruptcy vests in the assignee all the property owned by the bankrupt at the time of the commencement of the proceedings in bankruptcy, (with certain exceptions specified,) and all choses in action, debts, and rights of action of the bankrupt, "together with the like right, title, power and authority to sell, manage, dispose of, sue for and recover or defend the same, as the bankrupt might have had if no assignment had been made;" and "the assignee shall have the like remedy to recover all the estate, debts and effects in his own name, as the debtor might have had if the decree in bankruptcy had not been rendered and no assignment had been made." U.S. Rev. Sts. §§ 5044-5047.

The question whether an action upon a right belonging to the bankrupt at the time of the commencement of the proceedings in bankruptcy can be brought in his name, with the consent of the assignee, does not appear to have been decided by the Supreme Court of the United States. In Herndon v.Howard, 9 Wall. 664, an appellant from a Circuit Court became bankrupt pending the appeal, and his assignee in bankruptcy moved to be admitted as a party appellant with him; Chief Justice Chase said that the bankrupt act seemed to require that the assignee should be substituted as appellant for the bankrupt, who might be said to be civiliter mortuus, precisely as an executor would be made party instead of an appellant actually deceased; but the point adjudged was, that the only form in which the assignee's motion could be granted was by admitting him in the place of the bankrupt, and not as a joint appellant. In Knox v. Exchange Bank, 12 Wall. 379, the decision was, that, when the bankrupt obtained his certificate of discharge before judgment in the court below in an action against him, he had no further interest in the case, and could not maintain a writ of error, but the assignee might prosecute the writ of error in his stead. Under the corresponding provisions of the bankrupt act of 1841, Mr. Justice McLean held that "all suits commenced after the appointment of the assignee should be brought in his name, or at least prosecuted for the benefit of the creditors whom he represents," and that a suit brought by the bankrupt, and not in either of those forms, could not be maintained. U.S. St. August 19, 1841, § 3. Cook v. Lansing, 3 McLean 571.

But it is unnecessary to consider particularly the practice of the federal courts upon this subject, or the English decisions cited in the learned argument for the defendant. The question whether a suit upon a chose in action shall be brought in the name of the assignor or of the assignee, is a question of form of remedy only, and is to be determined by the lex fori. Warren v. Copelin, 4 Met. 594 597. Foss v. Nutting, 14 Gray 484. The bankrupt act not being a law of a foreign country, but a statute passed by Congress in the exercise of the powers conferred upon it by the Constitution, the assignee in bankruptcy may doubtless sue in his own name in the courts of this Commonwealth. Ward v. Jenkins, 10 Met. 583. Stevens v. Mechanics' Savings Bank, 101 Mass. 109. Otis v. Hadley, 112 Mass. 100. But no bankrupt act of the United States has undertaken to prohibit suits, upon debts due to the bankrupt before the bankruptcy, to be brought in the name of the bankrupt, with the consent of the assignee, in the courts of those States whose judicial procedure and practice allow suits to be so brought. There is a dictum of Mr. Justice Dewey in Ward v. Jenkins, that a bankrupt would be incapable after bankruptcy of suing in his own name. 10 Met. 590. But that dictum, unless limited to the case of a bankrupt suing without the consent of the...