Leighton v. Harwood , 111 Mass. 67 ( 1872 )

Chapman, C. J.

This is an action of replevin for four sewing machines. The defendants took them January 23, 1871, and the jury have found that they were then the property of the plaintiff. It appears from the bill of exceptions that the plaintiff purchased them of Cyrus G. Foss on October 1, 1870, and paid him for them in cash. They were delivered to him in a stitching shop of which Foss had a lease expiring November 1, 1870; and it was agreed that they should remain there and be used by the plaintiff or his wife in doing work for Foss till his tenancy expired. On November 1 the plaintiff hired the shop and kept the machines there, where they were used by his wife upon work furnished by Foss and paid for by him, till January 23,1871, when the defendants came and took them away. This writ was sued out the same day, and served a few days afterwards. The machines were taken from the shop and possession of the plaintiff, and Foss had no possession of the shop, and only a few small articles of property in it, which he had left there.

A petition in bankruptcy had been filed against Foss November 10, 1870 ; he had been declared a bankrupt December 21, 1870 ; and the defendants had been appointed his assignees in bankruptcy. It is to be taken for granted that they had an assignment of his property in the usual form, and it does not appear that they had any other authority or precept. They contend that the 14th section of the bankrupt act (U. S. St. 1867, c. 176) applies to them and protects them against liability to this action. This section provides that “ no person shall be entitled to maintain an action against an assignee in bankruptcy for anything done by him as such assignee, without previously giving him twenty days’ notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering amends, should he see fit to do so.” They say that they took these machines as assignees of Foss, and that this section applies to this case.

But this is too broad an interpretation of the section. The assignment is not a precept issued by the court, but a conveyance of the bankrupt’s property, giving the assignees the mere rights of ownership, but no authority or color of authority to take the property of strangers. If it were otherwise, their power to take such property would be limited only by their own discretion; and the assignment might be made an instrument of gross oppression. It would be so in this case; for the defendants might dispose of the property before the lapse of the twenty days, and then .tender amends. The plaintiff would thus be deprived of his right to an action of replevin to recover the specific property.

The case of Edge v. Parker, 8 B. & C. 697, is an authority on this point. It was trespass for breaking and entering the plaintiff’s premises and seizing his goods. The defendant was assignee of Timothy Edge, a bankrupt, and the goods belonged to the bankrupt, as the jury found. The action was not brought within three months, and the defendant contended that he was protected by the St. of 6 Geo. IV. c. 16, § 44, which provides “ that every action brought against any person for anything done in pursuance of this act shall be commenced within three calendar months next after the fact committed.” This raised the question whether the assignee of a bankrupt, who committed a trespass upon the property of another, could be regarded as acting in pursuance of the statute. The court held that the expression “in pursuance of” was applicable only where the party could be considered as founding his act upon the power given him by the Legislature; that the act did not give the assignee power to seize the goods of the bankrupt, but vested the property in him and clothed him with all the rights resulting from the ownership of the property. The plaintiff’s right of action was therefore held to be unaffected by the statute, and the action was maintained.

So in this case the defendants took as assignees only the rights resulting from the ownership of the bankrupt’s property; and their taking the plaintiff’s property tortiously did not deprive him of his right to the present action.

We do not think there is any force in the suggestion of the defendants that the bankrupt act presumes that the assignees of bankrupts will be men of integrity and substance, and will not be inclined to do wrong. Obviously it did not intend to authorize them to encroach upon the rights of strangers to the proceedings, if they should be so inclined.

The case of Freeman v. Howe, 24 How. 450, is relied on by the defendants, as authority to the point that they are protected by the bankrupt act against this action. It was decided in that case that a United States marshal is not liable to an action of replevin brought in a state court to recover property that he holds by attachment upon a writ issued from the United States court. But his office is different from that of an assignee in bankruptcy, and his custody of attached property is of a different character from the custody of an assignee; and we do not think the doctrine of that casa should be extended by analogy.

Nor is it material that the defendants honestly and reasonably believed that they were acting under the statute. The cases cited in which that belief has been held to be material are of a different class, where the exemption was directly provided for by acts of Parliament. But the bankrupt act does not purport to exempt any person from an action in the state courts for a tortious taking of property not in possession of the bankrupt and belonging to a stranger. In re Noakes, 1 Bankr. Reg. 164.

Exceptions overruled.