Sands v. James Carruthers & Co.

S.D. New York

Sands v. James Carruthers & Co.

243 F. 636, 1917 U.S. Dist. LEXIS 1149

DecidedJuly 11, 1917

StatusPublished

This text of 243 F. 636 (Sands v. James Carruthers & Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sands v. James Carruthers & Co., 243 F. 636, 1917 U.S. Dist. LEXIS 1149 (S.D.N.Y. 1917).

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Opinion

LEARNED HAND, District Judge.

It has been accepted law since Chappedelaine v. Dechenaux, 4 Cranch, 306, 2 L. Ed. 629, that the restriction in section 24, paragraph 1, does not cover the devolution by operation of the law of a chose in action from a testator to Iqis executor; [637]*637such officers are not “assignees.” The point was somewhat summarily considered in Chappedelaine v. Dechenaux, supra, but it was deliberately passed on in Childress v. Emory, 8 Wheat. 642, 5 L. Ed. 705. On the other hand, the word “assignment” is very literally considered, and an assignment by operation of law is held to be within the restriction, if the grantees are called “assignees.” Sere v. Pitot, 6 Cranch, 332, 3 L. Ed. 240. In Mayer v. Foulkrod, Fed. Cas. No. 9,341 (1823), Justice Washington and Judge Peters held that the Circuit Court had jurisdiction in a case precisely like this, except that it was a legacy which was assigned. The assignee was a citizen of Maryland, and so were his executors. The defendant was a citizen of Pennsylvania, and it did not appear whether or not the legatees were citizens of Pennsylvania, which must affirmatively have appeared if the fact was relevant. The jurisdiction of the Circuit Court was upheld; the court treating the case as precisely similar to Chappedelaine v. Dechenaux, supra. Now it should he said of Mayer v. Foulkrod, supra, that under the later decisions (Ingersoll v. Coram, 211 U. S. 335, 361, 29 Sup. Ct. 92, 53 L. Ed. 208, and Brown v. Fletcher, 235 U. S. 589, 35 Sup. Ct. 154, 59 L. Ed. 374), legacies are not treated as dioses in action, but as property. However, the court raised no such point, and supposed that the decision was necessary under the facts.

The statute does not literally apply to the case, because the suit is not “in favor of any assignee,” but of his administrators. As I have said, the statute is treated somewhat verbally (Sere v. Pitot, supra), but in this case it is not necessary to be verbal. There is no more reason to impute to S'auds’ administrators his personal incapacity to sue, because lie was an assignee, than to impute it to them if lie had been himself an alien. If the assignor’s administrators had sued, this court would certainly have had jurisdiction, as I have shown, and the effect of section 24, paragraph 1, is only to extend the effect of their alienage to the assignee. Certainly it is unlikely that Congress should have meant to put the assignee, with his imputed incapacity, into a different position from the assignor with his original incapacity. That, however, woukjbe the effect of a remand here.

Mr. Justice Hotchkiss, in the state court, took the motion under advisement, and I am glad to accept his conclusion.

Motion denied.

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LEARNED HAND, District Judge.

It has been accepted law since Chappedelaine v. Dechenaux, 4 Cranch, 306, 2 L. Ed. 629, that the restriction in section 24, paragraph 1, does not cover the devolution by operation of the law of a chose in action from a testator to Iqis executor; [637]*637such officers are not “assignees.” The point was somewhat summarily considered in Chappedelaine v. Dechenaux, supra, but it was deliberately passed on in Childress v. Emory, 8 Wheat. 642, 5 L. Ed. 705. On the other hand, the word “assignment” is very literally considered, and an assignment by operation of law is held to be within the restriction, if the grantees are called “assignees.” Sere v. Pitot, 6 Cranch, 332, 3 L. Ed. 240. In Mayer v. Foulkrod, Fed. Cas. No. 9,341 (1823), Justice Washington and Judge Peters held that the Circuit Court had jurisdiction in a case precisely like this, except that it was a legacy which was assigned. The assignee was a citizen of Maryland, and so were his executors. The defendant was a citizen of Pennsylvania, and it did not appear whether or not the legatees were citizens of Pennsylvania, which must affirmatively have appeared if the fact was relevant. The jurisdiction of the Circuit Court was upheld; the court treating the case as precisely similar to Chappedelaine v. Dechenaux, supra. Now it should he said of Mayer v. Foulkrod, supra, that under the later decisions (Ingersoll v. Coram, 211 U. S. 335, 361, 29 Sup. Ct. 92, 53 L. Ed. 208, and Brown v. Fletcher, 235 U. S. 589, 35 Sup. Ct. 154, 59 L. Ed. 374), legacies are not treated as dioses in action, but as property. However, the court raised no such point, and supposed that the decision was necessary under the facts.

The statute does not literally apply to the case, because the suit is not “in favor of any assignee,” but of his administrators. As I have said, the statute is treated somewhat verbally (Sere v. Pitot, supra), but in this case it is not necessary to be verbal. There is no more reason to impute to S'auds’ administrators his personal incapacity to sue, because lie was an assignee, than to impute it to them if lie had been himself an alien. If the assignor’s administrators had sued, this court would certainly have had jurisdiction, as I have shown, and the effect of section 24, paragraph 1, is only to extend the effect of their alienage to the assignee. Certainly it is unlikely that Congress should have meant to put the assignee, with his imputed incapacity, into a different position from the assignor with his original incapacity. That, however, woukjbe the effect of a remand here.

Mr. Justice Hotchkiss, in the state court, took the motion under advisement, and I am glad to accept his conclusion.

Motion denied.

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243 F. 636, 1917 U.S. Dist. LEXIS 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sands-v-james-carruthers-co-nysd-1917.

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