Brigham v. Coburn
76 Mass. 329
| Mass. | 1858
Metcalf, J.

The demurrer in this case was rightly overruled by the superior court. The only cause assigned for it is the omission of the plaintiffs to describe themselves as assignees under the insolvent laws. They describe themselves as “ assignees of Stephen G. Bass, an insolvent debtor.” But no assignee of a debtor’s property can maintain an action, as *331assignee, unless he has been appointed under the insolvent laws, and has received an assignment of the debtor’s property, under those laws. Nor can any administrator maintain an action, as administrator, unless he has been appointed by the right judge of probate, and has given bond to perform his trust. Langdon v. Potter, 11 Mass. 314. Davis v. Davis, 2 Cush. 113. Yet he does not and need not aver, in a declaration, that he was appointed by the rightful authority, or has qualified himself by giving bond. 11 Mass. 314. By describing himself as administrator, he is understood to describe himself as a lawfully authorized and qualified administrator, without an averment that he is such. And if his authority is not admitted, he must prove it, or fail in his suit. So, as it seems to us, when an assignee of an insolvent debtor sues as such, it is to be understood, without his so averring, that he is assignee under the insolvent laws, (by which alone he is enabled to sue,) and has received, from the commissioner or judge of insolvency, an assignment of the debtor’s property; and that it is sufficient for the maintenance of the action, if he prove his qualifications, when they are not admitted. See 7 B. & C. 406.

In strict legal accuracy, the plaintiffs should have termed themselves assignees, not of Bass, but of his estate; as an administrator should term himself administrator, not of the deceased intestate, but of his estate. Whether, if this too common inaccuracy had been specially pointed out as a demurrable defect in the declaration, the demurrer ought to have been sustained, we have not inquired. As it was not thus pointed out, we must disregard it. St. 1852, c. 312, § 21.

The first ground of exception taken to the proceedings at the trial is the admission of secondary evidence of the deed of assignment to the plaintiffs, upon the affidavit of one of them as to the loss of that deed.

The law requires, as preliminary to the reception of secondary evidence of a document, only such proof as induces a legal presumption of the loss of that document. And this question cf legal presumption must often be addressed to the discretion of the judge before whom the trial is had. 1 Greenl. Ev. § 558. *332The affidavit in this case has not been exhibited to us; and we cannot perceive, from the general statement of its contents, as set forth in the exceptions, that it did not raise a reasonable and legal presumption of the loss of the deed, according to the established rules of evidence. The question, what is due inquiry for a deed or other document, in order to admit secondary evidence of it, must be decided upon the particular circumstances of the case in which that question arises. Miller v. Miller, 1 Hodges, 187. 2 Phil. Ev. (N. Y. ed. 1849,) 229, 230. “ In ordinary cases,” says Mr. Baron Alderson, “you do not make search as for stolen goods. The court must be reasonably satisfied that due diligence has been used ; it is not .necessary to negative every possibility — it is enough to negative every reasonable probability — of anything being kept back.” M'Gahey v. Alston, 2 M. & W. 214. Upon the circumstances of the case before us, we cannot decide that secondary evidence was wrongly admitted. The case of Page v. Page, 15 Pick. 374, shows that the affidavit of the other assignee and plaintiff was not indispensable to the admission of such evidence.

The next exception is to the competency and sufficiency of the secondary evidence which was admitted. But we think it was both competent and sufficient. The effect of that evidence was, that a deed of assignment of Bass’s property was made to the plaintiffs, by the commissioner of insolvency, in the form of that which the witness exhibited as a copy. The correctness of that form has not been questioned by the defendant.

Demurrer and exceptions overruled.