Towle v. Rowe

Allen, J. Possession of the note and mortgage by the plaintiff was prima facie evidence of his right to recover. Drew v. Phelps, 18 N. H. 572. But the possession might be explained by evidence showing the right in another. Southwick v. Ely, 15 N. H. 541. To enable the plaintiff to maintain his suit, he must own, or have a substantial interest in, the subject-matter of the suit. Phelps v. Mahurin, 6 N. H. 536. The plaintiff’s interest in the note and mortgage, if any, was a right to redeem them from the pledgee by paying the debt. By reason of the plaintiff’s bankruptcy, all his property and estate not by law exempt, and all his rights of action including the right to redeem the note and mortgage from pledge, became vested in his assignee in bankruptcy from the date of adjudication. U. S. Rev. St., s. 5046; Berry v. Gillis, 17 N. H. 9. But the assignee was not bound to assert his right to the note and mortgage, nor to redeem them from pledge. As the trustee of the bankrupt’s creditors, it was his duty to protect the estate from loss, and not diminish it by unnecessary and unreasonable expense. He was not warranted in redeeming a pledge at an expense greater than the value of the property pledged; and when notified of a pending suit in favor of the bankrupt, it was his duty to determine by a fair exercise of judgment whether or not he would come in and prosecute it. Amory v. Lawrence, 3 Cliff. 535. If the assignee abandons any property or right of property belonging to the bankrupt’s estate, or if he declines to appear as prosecutor when sum *395 moned in a pending suit in favor of the bankrupt, the right remains in or is restored to the bankrupt, for the bankrupt has the right against everybody but the assignee. Fowler v. Down, 1 Bos. & Pul. 44; Towle v. Davenport, 57 N. H. 149. Judgment for the plaintiff. Bingham, J., did not sit.