Leach v. Greene

116 Mass. 534, 1875 Mass. LEXIS 31

• Court: Massachusetts Supreme Judicial Court
• Decided: January 21, 1875
• Status: Published

Opinion

Endicott, J.

It is distinctly stated in the bill of exceptions that the plaintiff purchased certain choses in action belonging to a bankrupt’s estate at public auction, among which was the claim for the barrels, declared on in the writ. It was not therefore a sale of the barrels, as now contended by the plaintiff, but of a chose in action.

It has been uniformly held in this Commonwealth, that the.assignee of a chose in action cannot, in the absence of a promise to himself, maintain an action thereon in his own name, but may do so in the name of his assignor. Usher v. D'Wolfe, 13 Mass. 290. Foss v. Nutting, 14 Gray, 484. The same rule has been held to apply to a sale by an official assignee of a chose in action belonging to the estate of an insolvent debtor, and that, under the provisions of the insolvent law then in force, no right of action vested in the vendee of the assignee. Hay v. Green, 12 Cush. 282.

By the St. of 1859, c. 194, § 1, (Gen. Sts. c. 118, § 100,) it was expressly provided that any suit brought on a claim or demand sold by the assignee of an insolvent debtor shall be brought in the name of the purchaser, and that the fact of such sale should be set forth in the writ. See Cushman v. Davis 3 Allen, 99.

An assignee under the bankrupt law of the United States, St. of 1867, c. 176, § 14, has the same power to deal with and dispose of choses in action vested in him, as the bankrupt might have had, if no assignment had been made. No special authority is given to the purchaser from such assignee to maintain a suit thereon in his own name.

There is no reason, therefore, for taking the case out of the settled rule in this Commonwealth, the lex fori must govern, and the ruling below is affirmed. Exceptions overruled.