Sullivan v. Bridge

Thacher, J. The ground of the motion in arrest of judgment is that the action is not brought to recover a debt, and therefore that the right of action, if one existed in the bankrupt, is not transferred to the assignee by the assignment of the commissioners. That the word debt is not to be taken in its technical meaning is obvious [383] from the statute. The statute speaks of a “ bond, judgment, contract and claim,” and in the same sect, which has been cited and relied on by the counsel for both parties, it is provided that “ when any action in the name of such bankrupt shall have been commenced, and shall be pending for the recovery of any debt or effects of the bankrupt, the assignee shall be admitted to prosecute,” &c. I think that the assignment extends to all claims founded in property. That in all cases where the cause of action would survive to the executor of the bankrupt, it passes to his assignee. For instance, trover. Perhaps also a right of action for trespass quare clausum fregit, would pass to the assignee. For although such cause of action does not survive to the executor of the bankrupt, yet it is founded in property, and the land itself passes by the assignment. The present claim is * founded in property ; the cause of action would have survived to the executor of the bankrupt, and therefore, in my opinion, the assignee is entitled to judgment according to the verdict. Sewall, J. Upon the question of the authority of the now plaintiff to maintain this action, I am clear in the opinion that he has the authority contended for. WilKam Sullivan, it is admitted, or understood from the verdict which has been found, is the assignee of the effects of Ichabod Frost, (who, since the judgment mentioned in the declaration of the writ, has become a bankrupt,) and, as such, claims the said judgment, and this action to obtain the benefit of it, under and by force of the statute of bankruptcy of the United States. By the 13th sect, of that statute, debts due to the bankrupt are assignable by the commissioners. And that in the term “ debts,” is included any judgment recovered by the bankrupt, remaining unsatisfied, appears in the next subsequent words ; which declare, “ that the property and right of such assigned debt shall vest in the assignee as fully as if the bond, judgment, &c., had originally belonged to him.” The judgment recovered by Frost against Martin has been, therefore, unquestionably assigned by the bankruptcy of Frost and the proceedings thereupon had. And as to this particular action, it is, in my opinion, to be considered as one of the legal remedies provided for a judgment-creditor, whereby he may obtain a satisfaction or a compensation for his judgment. The reason of the thing, and the obvious construction of the bankrupt law, warrant this decision without further evidence of the reported authority which has been cited for the plaintiff, (a) Upon the other question, of the form of the declaration, * although at the first argument I had some doubts, [384] these have been removed by a more accurate examination of the pleadings; and upon the whole I consider this declaration, however informal, loose and prolix, as containing sufficient tc enable us to enter a judgment upon it; and this must be for the plaintiff, according to the verdict. Sedgwick, J. Two canses are shown for arresting the judgment in this case. 1. It is said that the declaration is substantially defective. 2. That the cause of action, on which this was brought, is not assignable under the bankrupt law. The case is exceeding clear on both points. As to the first, ‘the declaration alleges, in substance, that the bankrupt delivered the execution, in the first instance, to Sevey, a deputy of the sheriff, and that it was afterwards delivered over to Kean, another deputy; and upon the latter the nonfeazance complained of is directly charged. This charge, by the pleadings, is directly put in issue, and affirmed by the verdict of the jury. So that it is apparent from the record that there has been a default in the performance of the office of sheriff, by which an injury has been sustained, and for which damages are assessed. Now every thing that is alleged as to the execution passing through the hands of Sevey, is wholly insignificant and unnecessary — mere surplusage. Let the mind then strike out every thing which is said of Sevey, and the charge against the sheriff is well alleged, and supported by the verdict. The second question is equally clear. The bankrupt law has two main objects — to enable the creditors of the bankrupt to participate equally, in proportion to their demands, in the estate of the bankrupt ; and to discharge him from all debts which can be proved under the commission. As it is intended to operate a discharge to him, it is but equitable that his whole estate * should be applied to their benefit. Hence, by an act of bankruptcy, from the moment it is committed, he is divested of all his “estate and effects,” whether existing in possession or right of action, which “ estate and effects ” vest, at the very same point of time, by retrospection, in the first instance in the commissioners, and afterwards, by their assignment, in the assignee. To this in the most extensive sense there is no exception. And so equitable and extensive is the operation of this principle, that a debt or chose in action due to the wife, (a) and an obligation taken in the name of another for the use of the bankrupt, are assignable. (b) The words of the statute in the 6th and 13th sections are quite adequate to these purposes. It is true that there are certain causes of action which are not assignable$ but these are merely personal; where the [385] action is of the vindictive nature — as for assault and battery, slander, &c. So commissioners cannot assign future earnings, arising from the bankrupt’s labor — this is altogether personal. But in this case, the action is brought to obtain the benefit of a judgment, in favor of the bankrupt, which has been lost, or at least, suspended, by the misconduct of the sheriff; and it would be monstrous to say, the general policy of the bankrupt law considered that such an action cannot be supported. After Sedgwick and Sewall, justices, had delivered their opin ions, Thacher, J., said he had supposed the objection to the declaration had been abandoned; but that he perfectly concurred with the other judges, in the opinion that the declaration was sufficient, after a verdict. Judgment for the plaintiff. Footnotes [(a)] The authority here referred to must, I believe, have been cited upon a former argument. If any was cited at this term, it escaped my notice. [(a)] P. W. 249. Ibid. 460. [(b)] Palm. 505.