Bird v. Caritat — 2 Johns. 342

Majority

p. 341

Henry M. Bird, and B. Savage, and Aspinwall, Ferguson and Hoffman, the assignees of Robert Bird, a Bankrupt, against Caritat.

Headnote

, ^ suit uiay bo brogm ni this state, in forei^Tbank-rnPfi and ha ™fth ^he” ass,onees of f copartnerwbo is bankrupt in tlus countly' It is a principle ofgeneral practioe among- nations, to admit and give effect to the title offo-reign assignees, in cases of bankruptcy ; but the mode of proceeding to recover the debts of the bankrupt, whether in his own name, or in the name of the assignees, depends on the.forms of proceeding in the country, and in the forum where the suit is instituted. Where the defendant in his plea, alleged, that, on stating a balance of accounts, he delivered certain negotiable notes to C. on account, and in behalf of the plaintiffs, but did not aver that C. was the agent of the plaintiffs, nor that the notes were accepted in full satisfaction and discharge of the debt due to the plaintiffs, the plea was held bad. If the defendant aver that prior to the suing out of the writ, he settled and discharged the debt of.the plaintiff, it is sufficient as lo the time ; for the suing out of the writ is considered as the commencement of the suit-

Tuts was an action of assumpsit. The declaration stated, that on the if 1st December, 1801, and before the bankruptcy of Robert Bird, the said Bird, Savage &f Bird, were copartners in trade, and that the defendant was indebted to them before the bankruptcy of the said Robert, in $2,500 for money laid out and expended, and the like , sum for money lent, and the like sum for money had and received, and the like sutn on an insimulcomputassent, &c.

The defendant pleaded four pleas : 1st. Non assumpsit.

2. That the two first named plaintiffs were joint traders with Robert Bird, in Great Britain, and before suing out the commission of bankruptcy against Robert Bird, were

p. 342

indebted to divers persons in Great Britain, &c. &c; and being go indebted, the two first-named plaintiffs became bankrupts in Great Britain; and that such proceedings were bad, before suing out the writ in this suit, that a 'commission of bankruptcy was sued out in Great Britain agajnst ¿hem, by virtue of which, the commissioners therein named did, after the said assumptions, and. before suing; out the writ in this suit, declare the two first-named plaintiffs bankrupts, and did, in due form of law, assign unto certain persons, all the estate, &c. of the said two first-named plaintiffs, in- trust for all the creditors,-&e.; which- commission remains in full force, &c. wherefore he prays judgment,- &c. 3d. That after making, the said! promises, and before the suing out of the said commission against the two first-named plaintiffs, and before that the three last-named plaintiffs were assignees of Robert Bird, ,and before the- suing out the writ in this suit, to wit, on the 14th October, 1800, at, &c. a certain account was stated between Bird, Savage & Bird!, and the defendant, of and concerning the said premises, &,c. and the defendant was found in arrear to them in $6.869 25-, for which sum he gave his promissory note, whereby he promised to pay, on- the 12th August then next, to Isaac Riley, or order, the said $6,869 25, and that the said Isaac Riley endorsed the said note, and that the defendant delivered it to Francis Childs, on behalf of Bird,Savage fyBird, and' on account of the said $6,869 25, whieh note is due, &c. wherefore ho prays judgment, & c-4th. That after the making the said promises, and before the issuing of the said commission, and before the three last-named plaintiffs were assignees, and before the issuing of the writ in this suit, to wit, on the 14th October, 1800, a certain account wa$ stated between Bird, Savage & Bird and the defendant, of and concerning the said premises, &c. and the defendant was supposed to be in arrear to them in $6,869 25, for which he gave his-

p. 343

Mote to Isaac Riley, and the said Riley endorsed the same, and delivered it to Francis Childs, for, and in behalf of Bird, Savage Bird, which note is still outstanding, and as a collateral security therefor, the defendant endorsed and delivered to the said Francis Childs, for, and on account of Bird., Savage fy Bird, and on account of the said $8,869 25, several negotiable notes, to wit, a note of IX fy S. for $2,750, a note of H. for 2,000, both payable in' six months, a'note of R. for $989, payable in sixty days, and a note of G. fy B. for $1,000, payable atthe like date; that all the above notes have been long since due, and the defendant has not received notice of the non-payment of any of them, and the whole amount of the said notes haye, or might have been, before this suit, recovered by the said Bird, Savage &f Bird, or the.ir assignees — wherefore he prays judgment, &e.

To the 2d, 3d, and 4th pleas, there were special demurrers, and the causes assigned were, that the defendant had alleged, that the matters and things in those pleas pleaded were before the suing out of the writ in the present action, whereas he ought to have alleged that the same happened before the exhibition of the bill in this action; and because the pleas amounted to the general issue, and were uncertain and informal, &c. To these several demurrers the defendant joined in demurrer.

The demurrer was argued at the last term by Hoffman Riggs, for the plaintiffs, and Harison &f Caines, for the defendant.^[1]

The counsel for the plaintiffs

cited Holmes Brahe v. Be Camp, 1 Johnson. 36. and Bird, Savage Bird v. Pierpont, 1 Johnson, 121. 123. Bullets N. P. 151, 152, 353. 4 Term, 182, 192, 193. Ilwnier v.. Potts, and Silly. Worswick, 1 Hen. Black. 676.

The counsel for the defendant

cited, 1 Caines, 69. 3 Caines, 133. 1 Burrow, 319. Litt.% 434. Co. IAtt. 17. 8 Bac. Ah. by Gwillim, 370. 1 Salk. 344. 2 Salk 516. 8

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Term, 140. 1 Johnson, 118. Laives on Pleading, 112. 115. Ambler, 25. 2 Vescy, 35. 2 Bos. fyPul.l 20. 231. 2 Pesey, 3^. 1 P. Wins. 698. 2 Domat. B. 1. tit. 16. sect. 3, 4. 2 Bos. fy Pul. 226. (a.) 4 Term, 192. 2 Hen, Blaclc. 405. 5 Pesey, jun. 583. 9 Pesey, jun. 86.1 East, 363. 368. 8 Term, 571. 1 IT. Blade. 691, 692, 693. Comyn’s Digest, tit. Pleader, C. 26. 3 Term, 766. 5 Term, 513. Williams'' Mass. Rep. 117. Addison's Rep. 155. 12 Piner, 71. §23. 74. §54. 77,78, 79. 2 PentHs, 295. 12 Mod. 101. 377. 1 P. Wins. 258. 1 Strange, 612. Cro. James, 82.

The demurrer to the second plea raises the question, whether the assignees under a commission of bankruptcy, sued out in England, can maintain a suit at law here in their own names. This is more a question concerning form than substance, for there can be no doubt of the right of the assignees to collect the debts due to the bankrupt, either by a suit directly in their own names, or as trustees, using the name of the bankrupt- It is a principle of general practice among nations, to admit and give effect to the title of foreign assignees. This is done on the ground, that the conveyance under the bankrupt laws ofthe country where the. owner is domiciled, is equivalent to a voluntary conveyance by the bankrupt; and that the general disposition of personal property by the owner in one country, will affect it every where, because, in respect to the owner’s control over it, personal property has no locality. Rut the mode of recovering the debts of the bankrupt, will depend upon the forms of proceeding in the country, and in the forum in which the assignee institutes bis suit. In the court of chancery in England, the assignee files his bill in his own name, and states his title under the commission. This is also said to be the practice in Scotland, because, there is nothing in the forms of the Scotch proceedings to bar the assignee from bringing a direct action against the debtors of the bankrupt. (Kaim’s Equity,

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vol. 2. 364. Doug. 170. Chevalier v. Lynch.) At common law, however, a chose in action is not assignable. It was not, therefore, in the power of the bankrupt to as- . . . • . sign the premises stated m the declaration, so as to enable the assignee to sue upon them in his own name; yet his assignment would have transferred as valid a title'as that under the foreign commission. No instance has been shown in which the English courts of law have allowed the foreign assignee to prosecute in his own name, and, I presume, no such instance exists. The plea is, therefore, clearly bad; The suit was properly brought in the name of the English bankrupts, and there is nothing upon the record by which the court can infer, that the suit is not carried on at the instance of the assignees, and or their benefit as trustees.

The 3d and 4th pleas do not correspond with the precedent in 5 Term, 513.^[1] In that case the plea averred, that the negotiable note of a third person had been ac-copied and received by the plaintiffs, in full satisfaction and discharge of the prior assumpsit. Here the notes are stated to have been delivered to one Francis Childs, for, and o.n behalf of the plaintiffs, and non Constat, that Childs was an agent of the plaintiffs for that purpose, or that the notes ever came to the knowledge or into possession of the plaintiffs. Childs was to them' a stranger, and they were not bound to look after him. These pleas are, therefore, bad in substance, and it would sbe unnecessary to notice the special causes of demurrer, vv^reit not that the defendant, according to his suggestion upon the argument, may apply for leave to amend them.

As to the objections, then, to the pleas in point of form, I would observe, that the averment of a settlement and discharge, prior to the suing out of the writ, was sufficient; because the time of the suing out of the writ is the com-' mencement of the suit for the purpose averred in the plea. It was considered as the commencement of the suit in

* Kearslake v. Morgan.

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the case of Carpenter v. Butterfield, (July Term, 1801,) and again in Lowry v. Lawrence, (1 Caines, 69.) and this is the good sense, as well as the truth, on the subject.— The m&tters contained in these pleas, if amounting to a and discharge, or payment, might be pleaded, as well as given in evidence under the general issue.— The case of Kearslake v. Morgan, (5 Term, 513.) is decisive that they might be specially pleaded.

Thompson, J. declared himself of the same opinion.

Spencer, J. not having heard the argument, gave no opinion,(a.)

Judgment for the plaintiffs.