Carr v. Lord , 29 Me. 51 ( 1848 )

The opinion of the Court, Shepley, Tenney & Wells Justices, was drawn up by

Shepley J.

The suit was commenced on May 1, 1845, on a promissory note made by the defendants on January 3, 1843, payable to Hiram Corliss, in twenty days from date. The plaintiff is the assignee in bankruptcy of Corliss, who was decreed to be a bankrupt on February 21, 1843, on his own petition, filed on December 1, 1842.

The first objection is, that the action cannot be maintained, because it was commenced more than two years after the cause of action first accrued and after the decree in bankruptcy had been made. The latter clause of the eighth section of the act to establish an uniform system of bankruptcy declares, “ no suit at law or in equity shall, in any case, be maintainable by or against such assignee, or by or against any person claiming an adverse interest touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years after the declaration and decree in bankruptcy, or after the cause of suit shall first have accrued.”

If the words, “ in any case,” were omitted there could be little doubt respecting the true sense and construction. It would be, that no suit by or against such assignee, claiming an adverse interest in any property or rights of property, transferable to or vested in such assignee, and no suit by or against any other person claiming an adverse interest in the same, shall be maintainable, unless, &c. Was it the intention by the use of the words “ in any case” that the limitation should be applicable to suits of all descriptions, by or against an assignee, and to those suits only by or against any other person claiming an adverse interest in such property or rights of property ? Those words have no more particular connexion or relation to the maintenance of an action, by or against an assignee, than they have to the maintenance of an action by or against any person claiming an adverse interest. And it is certain, that the limitation with respect to such persons, applies only when they claim an adverse interest in such property. The former clause of the section provides, that the Circuit Court shall have concurrent jurisdiction with the District Court of all suits brought by any assignee against any person claiming an adverse interest, or by any such person against such assignee. The same subject appears to have been under consideration in the framing of the latter clause; and more general words may properly be explained and restricted by the subject of legislation. Some assistance in the exposition may be obtained by a recurrence to the tenth section. By this it is made the duty of the District Court to direct a collection of the assets at as early periods as practicable, consistently with a due regard to the interests of the creditors; and to have the proceedings brought to a close within two years, if practicable. These provisions by implication would authorize that court to allow a longer time for the assignee to collect the assets, which would be inconsistent with a prohibition, that no suit should be maintained by an assignee after that time. Taking into consideration the subject of legislation, the arrangement of the language used in the eighth section, and the provisions of the tenth section, the conclusion is, that the limitation was not intended to include suits of this description.

Another objection is, that the suit was commenced by order of the bankrupt, without the knowledge or consent of the plaintiff, and that the note has not been in his “ personal possession.”

The assignee has since authorized the suit to be prosecuted in his name by the attorney, who commenced it. It is said, that one acting in an official capacity cannot, ratify the acts of one assuming to act for him. However this may be, should the person assume to perform duties requiring an official sanction, there can be no doubt, that one acting in an official capacity, may employ agents to perform certain acts for him, and in such cases he may ratify their acts when performed without a precedent authority.

The note, having been made payable to the bankrupt after petition filed and before the decree, passed to the assignee by operation of law as a part of the bankrupt’s assets. Ex parte, Newhall, 2 Story, 360. The attorney, after his proceedings had been ratified, would hold the note as the attorney of the plaintiff. jDefendants defaulted.