33 Miss. 423 | Miss. | 1857
delivered the opinion of the court.
The defendants in error, as partners, brought this action against the plaintiffs in error, to recover a sum of money due upon an open account.
It appears that prior to the institution of the suit, Pattison,.one of the partners, under the insolvent laws of the State of Louisiana, where he resided, made a surrender of his property and effects for the benefit of his creditors, including the claim here sued on, in the proper court in that State, and that a syndic was there appointed, who, under the operation of the laws of that State, became an assignee of his property and effects, for the benefit of his creditors. These proceedings were taken in relation to his individual rights, and did not in terms embrace the firm of Lowe, Pattison & Co.
The question presented by the.record is, whether, under such a state of facts, the suit could be maintained in the name of the firm of Lowe, Pattison, & Co., or whether the syndic of Pattison was not a necessary party, together with the other partners of the firm.
It is to be observed, that the alleged assignment to the syndic is in virtue of the laws of another State, which can have no force of themselves to pass legal titles to property in this State; and such assignment can only be valid and effectual here, to enable the assignee to sue in his own name, when they relate to rights or property which are assignable under our laws. The rule which applies to the question who shall be parties to the action, is established by the law of the forum, and is said to belong rather to the form of the remedy than to the right and merit of the claim. Story’s Confl. Laws, § 565. The question in such cases is, what shall constitute a sufficient legal title to enable the party to sue in our courts; and if the thing assigned be not such as is assignable under our
Hence it is clear that, as the account sued on here was not assignable under our laws, so as to enable the syndic to sue in his own Dame, the suit could not have been maintained in his name, either solely, if the cause of action had been the sole individual property of the insolvent, or jointly, with the copartners of the insolvent in this case.
It is also well settled upon principle and authority, that the suit could be maintained in the name of the insolvent, notwithstanding the appointment of the syndic. Blane v. Drummond, 1 Brockenbrough, 62; Raymond v. Johnson, 11 Johns. Rep.
The case of Simms v. Ross, 8 S. & M. 557, is relied upon in behalf of the plaintiffs in error, as settling the question that the syndic was a proper party to this action. That was a question arising under the Bankrupt Law of the United States, the operation of which extended to this State, and- had the same effect upon the rights involved in it in this State as if it had been one of our own statutes. It is in this, manifestly different from a statute of one of the States, which can have no effect upon remedies and modes of judicial proceeding here, not recognized by our laws.
But it is said that Pattison had no interest in the cause of action when the suit was instituted, and therefore, that it could not be maintained. It is true that his interest passed to the syndic as trustee for his creditors. But so far as is cognizable by our laws, and for the purpose of maintaining the action, the legal title remained in him, subject to whatever claim the syndic might have against the other partners, in virtue of his interest in the debt.
The case of Eckhardt v. Wilson, 8 Term Rep. 140, was a case of bankruptcy in England, and under the laws there, in virtue of which the assignee succeeded to the legal title of the bankrupt, and was, therefore, held to be competent to sue with the other plaintiff. The .same reason which gave the assignee the right to sue in his own name, also rendered the bankrupt incompetent to sue in his
Let the judgment be affirmed.