Leach v. Greene

One who has purchased in another state choses in action belonging to the estate of a bankrupt cannot prosecute in this Commonwealth a suit thereon in his own name.

Contract for goods sold and delivered. The declaration also contained a count for conversion of the same goods. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows: The plaintiff’s counsel stated, in opening, that the original transactions with the defendant, out of which the suit grew, were with one William E. Brockway, of the city, county and State of New York, who had sold the defendant beer, and had sent it in barrels to the defendant, which barrels, to the number of thirty-sight, had not been returned ; that subsequently, on January 17, 1871, Brockway was adjudged a bankrupt in the United States District Court for the Southern District of New Yore; that assignees were appointed and duly confirmed on February 13, 1871; that the assignees sold certain choses in action, forming part of the bankrupt’s estate, at public auction on June 26,1871, which sale was confirmed by the United States District Court aforesaid on May 1, 1872; that Nathan W. Leach, the present plaintiff, was the purchaser of the bankrupt’s choses in action, among which is the present claim for the barrels declared on in the plaintiff’s writ. The plaintiff offered in evidence the certified copy of the assignment in bankruptcy of the estate of Brockway, showing the appointment of John M. Quite an and John Gordon, of the city of New York, as assignees of his estate, real and personal, including all the property of whatever kind of which he was possessed, or in which he was interested, or entitled to have on January 17, 1871, with all his deeds, books and papers relating thereto, and bearing date February 13, 1871; also a certified copy of the bill of sale from the said assignees to the plaintiff, dated June 26, 1871, conveying to the plaintiff, for the consideration therein named, his heirs, administrators and assigns forever, all the books, notes, books of account and choses in action of the said Brock-way, previously conveyed to the said assignees and uncollected by them; also a certified copy of the approval of the United States District Court of New York, in bankruptcy, bearing date May 1, 1872, of the sale at public auction by the assignees, on June 26, 1871, of certain choses in action, forming part of the estate of the said bankrupt. These several papers were admitted by the judge. The plaintiff then called as a witness the said bankrupt, who testified that before his bankruptcy he had sold beer to the defendant, and sent it to him in barrels which were to be returned, and that he had made demand for these barrels of the defendant before his bankruptcy in his own name, and since his bankruptcy and the sale of the choses in action sold by his assignees to the plaintiff, in the name of the plaintiff, before the present suit was brought; that he was authorized by the plaintiff to make this demand; and that the defendant said the state police had seized some of them, and that he would pick them up and send them back, but he never did so. These barrels constituted a part of the assets of the bankrupt’s estate, and appeared in his book of accounts against the defendant. The plaintiff offered to prove, by letters of the defendant to Brockway, the promise to return the barrels before his bankruptcy. The number of barrels claimed as had by the defendant and not returned was thirty-eight, valued at $4.50 each. The judge ruled that the action upon these facts, if proved could not be maintained in the name of the plaintiff, and the plaintiff alleged exceptions.