Hall v. Sewell

9 Gill 146 | Md. | 1850

Magruder, J.,

delivered the opinion of this court.

The point which arises in this case upon the last bill of exceptions, will first be disposed of.

The appellant, as the assignee of one John Hoover, a bankrupt, instituted this action' in his own name, against the appellee, claiming sums of money alleged to be due from the appellee to the bankrupt, at the time of his application. Proof was offered of the claim, and of the proceedings, in the case of the bankrupt, and upon the evidence offered, the court at the instance of the appellee, instructed the jury, that it is not sufficient evidence of the appointment of the plaintiff, (appellant,) as assignee of John Hoover, and therefore the plaintiff could not maintain the action. Did the court err in giving this instruction ?

Wé are told in 2nd Maddock’s Chancery Practice, that in England, all the chancellor’s jurisdiction in bankruptcy is derived from the legislature, it is a statutory jurisdiction, and begins and ends in acts of Parliament. In 2nd Philips on Evidence, p. 319, (Cowen’s edition,) we learn what proof must be offered by the assignees of a bankrupt, if their title' be not admitted. The provisions of our statute of bankruptcy, are very different from those of the bankrupt law in England. In this country, however, proof, equally strict, of his title to sue, is required.

The plaintiff below, in proof of his title to recover in his own name, money alleged to be due by the defendant below to the bankrupt, offered in proof the proceedings which took place in the circuit court of the District of Columbia, upon the application of the bankrupt.- It is objected, that these proceedings do not authorise the suit.- One answer given to this is, that it is not competent fór' a court of Maryland, “not invested with appellate powers,” to revisé or question, the correctness of the circuit court;' that the proceedings show the appointment of a trustee by that court, and what was done by him and the court in consequence of said application; these proceedings it must be presumed here, are correct. This is sometimes true, but not when the court is exercising the power conferred by the bankrupt law. It is possible, indeed, that the courts of the different States, will differ in their interpretation of some of the provisions of this act of Congress, each being governed by its own interpretation of its bankrupt or insolvent laws.

The bankrupt law, like our insolvent law, requires the trustee to give bond, and it is presumed that the same proof will be required of an assignee of a bankrupt, suing as assignee, that is required here of the trustee of an insolvent, appointed by our own judicial tribunals. In the case of Winchester, trustee, vs. The Union Bank, 2 G. & J., 73, we are told what proof is required of a trustee of an insolvent applicant, claiming a right to sue in that character. He must give bond, and so the assignee of a bankrupt is required to give bond, with at least two sureties, in such sum as the court may deem proper; and this, and every other requisite of the act of Congress, must be complied with, before he can sue in that capacity.

It was attempted in this case to show, that the appellant did give bond, and for this purpose two, (not corresponding) copies of the proceedings of the circuit court, were offered in evidence. The one shows that, previously to this application, he had been appointed a general assignee in bankruptcy, and had given bond faithfully to discharge his duties as such. It is thought that this is not such an appointment, as divests out of the bankrupt his property, and vests it in the assignee' u appointed from time to time by the proper court.”

Of this opinion, indeed, the circuit court seems to have been, for one of the records shows, that the general assignee was also appointed the assignee of Hoover. The special assignee', however, does' not appear ever to have given the bond which the act of Congress requires.

When the assignee thus appointed claims and would exercise the right of suing in our'.courts, they must judge, whether in any such character, he has a right to maintain an action in them'.

But there are two other exceptions of which we will now dispose. An application, by petition, had been made to the county court, to require the defendant below to answer certain interrogatories then submitted, and on- the 30th March, 1847, it was ordered that the defendant answer them, on or before the'30th of April then next. On the second Monday of January, 1840, a judgment, or decree is obtained, because the interrogatories are not answered, and thereupon,, the record tells us, let a jury come to inquire what damages the plaintiff hath sustained.- We will not stop to inquire whether this is the course authorised by the act of Assembly ?

During the same term, the attorney for the defendant filed in court affidavits, and one was filed by the attorney for the plaintiff, and upon motion, the judgment spoken of, was, by order of the court, stricken out. Because of this an exception was taken by the plaintiff.

The power of the court to strike out this interlocutory decree or judgment, will be seen by a reference to the act of 1787, chap. 9, sec. 6. Upon the affidavits filed, in connection with this motion, we shall only remark, that they show the necessity, in all such cases, that counsel reduce their agreements to writing. It cannot be doubted that each of the gentlemen misunderstood the other, and hence the surprise. See upon the subject of striking out judgments, 2 H. & G., 374 and 379. See, also, in Palmer and Hamilton vs. Oliver, 11 G. & J., 137, some remarks pertinent to applications of this description: “Judgments at law,” said the court, 2 H. & G., 378, “are not lightly to be interfered with, and it must be a case infinitely stronger than the present, to induce this court to sanction the striking out a judgment of almost eight years standing”

In the case before us, theout an interlocutory judgment, and made too the very term that the judgment was entered. Ido the very termilhat the judgmotions.

hi$h had been ;o the interrer But the court also rescifdecl the order passed, and thereby dispensfc ^tSjfsiMy rogatories which the defendan^S^low.^haé^iJÍén required to answer. Of this can the appellant complain in this court ? The plaintiff had been required to furnish, and had furnished, a bill of particulars. To this he must confine himself in his proof, and cannot propose questions, the answers to which do not relate to the matters in issue. It is thought that this last order of the court, furnishes the plaintiff with no ground for reversing the judgment.

judgment affirmed, with costs.