Batchelder v. Pierce

Knowlton, J. The plaintiff, an assignee in insolvency, brought a suit to recover the value of a stock of goods alleged to have been fraudulently transferred by the debtor to the defendant as a preference. He was allowed to amend his declaration by adding a count for a fraudulent assignment of certain accounts receivable. The defendant’s only exception is to the allowance of the amendment. The allowance of the amendment was an adjudication under the Pub. Sts. c. 167, §§ 42, 85, that the cause of action relied on by the plaintiff when the action was commenced was a fraudulent transfer of the property, which included the accounts, although perhaps the plaintiff did not then know what property was covered by the conveyance. If his purpose was to recover the value of everything included in the fraudulent transfer, and if he did not mention the accounts in the original declaration because he did not know until afterward that they were included, he was properly allowed to amend his declaration. The decision involved a finding of fact. The effect of these sections of the statute, in creating “ an essential change in the power and practice of the court in allowing amendments,” is stated at length by Chief Justice Bigelow in Mann v. Brewer, 7 Allen, 202. See also Wood v. Denny, 7 Gray, 540; Freeman v. Creech, 112 Mass. 180; Doran v. Cohen, 147 Mass. 342; Townsend National Bank v. Jones, 151 Mass. 454; Driscoll v. Holt, post, 262. The Pub. Sts. c. 167, § 85, which makes the adjudication of [262] the court allowing an amendment conclusive evidence of the identity of the cause of action, leaves the defendant with no right of exception in a case like the present. Mann v. Brewer, 7 Allen, 202. Hutchinson v. Tucker, 124 Mass. 240. The question passed upon by the Superior Court was merely a question of fact, to the decision of which no exception lies. Exceptions overruled.