Brush v. Curtis

Hosmer, Ch. J. The general question raised for determination, is simply this; Whether by the law of Connecticut, the plaintiff, in his own name, can maintain an action on the note in suit. The note might have been absolutely negotiated, by indorsement, so as to have vested the legal interest in the assignee; (Chitty on Bills 17. 141.) but no such fact existing, it cannot be insisted, that the plaintiff has derived any right from this source. The averment in the declaration, that by the acts of the legislature referred to, the plaintiff is authorized and empowered, in his own name, to maintain and prosecute for the recovery of the estate and effects of St. John, is unavailable, for two reasons. It is not the subject of a general allegation; but the acts should have been recited. Waiving, however, this technical objection, the law merely gives a remedy, which is valid in the courts of the state where it was enacted, but does not change the nature of the right derived from the assignment. Passing by the question made at the bar, relative to the operation of the insolvent law of New-York on the estate of the debtor, without the jurisdiction of that state, as being unnecessary to be determined, I will take for granted, that it is assigned, and limit myself to this single enquiry; Whether the assignment of St. John, by its proper force, has vested in the assignee, a legal title to the note in question. A chose in action, at common law, is not assignable, so as to vest in the assignee, any thing beyond an equitable interest. The title of the plaintiff was not derived from an indorsement of the note, but from an assignment; and his interest in it is of the same nature as in the bonds, or other specialties of the debtor. The assignment of a bankrupt’s effects in another country, is equivalent to a voluntary assignment made by him personally. Smith v. Buchanan, 1 East 11. Goodwin v. Jones, 3 Mass. Rep. 517. Bird & al. v. Caritat, 2 Johns. Rep. 344. From these undoubted principles, it clearly results, that the [316] title of the plaintiff to the note declared upon, like his title to the bonds and specialties of the debtor, is equitable only; notwithstanding, by express statute, so far as the laws of New-York, by their proper force, can operate, he is authorized to sue in his own name. Precisely to this effect was the determination of the supreme court of that state, in Bird & al. v. Caritat, 2 Johns. Rep. 344. It was said, by Kent, Ch. J., “at common law, a chose in action is not assignable. It was not, therefore, in the power of the bankrupt to assign the premises (demands for money paid) stated in his 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.” In the case from which the above extract is made, the action was brought in the name of the English bankrupts; and was sustained. In Dawes v. Boylston, 9 Mass. Rep. 337. and in Thomas v. Amory, 11 Mass. Rep. 25. the same point was, in the same manner, decided. In the case of Innes v. Dunlop, 8 Term Rep. 595. an action of assumpsit was brought, by the assignee of a bankrupt, upon the defendant’s promise to pay a Scotch bond, and was supported; which, it is presumed, would not have taken place, if he was vested with a legal title to the bond. The cases of Elderkin v. Elderkin, 1 Root 139., Bowne v. Olcott, 2 Root 353., and Goff v. Billinghurst, 2 Root 527., were cited, by the plaintiff; but, obviously, have no bearing on the point under discussion; the notes in all these instances having been negotiable, and actually negotiated, by indorsement. In the case of Goodwin v. Jones, 3 Mass. Rep. 514. Ch. J. Parsons, as has been supposed, expressed an opinion, that the assignee of a bankrupt might prosecute in his own name. The principal point of the case related to the authority of an administrator; and, in argument, the Ch. J. remarked, that “the assignee of a bankrupt, duly appointed, may maintain an action, in that character, in any other state, the laws of which are not repugnant to his recovery.” The sole object of this observation was the expression of an opinion, that the title of an assignee ought to be recognized, although it was derived from persons living in another state or kingdom. But whether he could sue in his own name, on a chose in action, [317] not negotiable, or not negotiated, was not within the scope of the remark. What was the opinion of the learned judge may readily be inferred, by a subsequent observation of his, in the same case. “The assignment of a bankrupt’s effects may be considered as his own act, as it is in the execution of laws by which he is bound, he himself being competent to make such assignment, and voluntarily committing the act, which authorized the making it. The judge, who considers the title of an assignee, as derived from the voluntary assignment of the debtor, could not be at a loss, with regard to its legal effect. The plaintiff should have brought his action in the name of St. John; and having recovered the money due, it would have been his legal property, in trust for the creditors. The other Judges were of the same opinion. Declaration insufficient.