Stone v. Simonds

131 Mass. 457 | Mass. | 1881

G-eay, C. J.

A composition under the U. S. St. of June 22, 1874, § 17, deriving its effect from its confirmation by the court of bankruptcy, does not indeed stand like a voluntary composition in pais, and is so far a proceeding in bankruptcy that, like a certificate of discharge, it does not release sureties, nor bar an action on a debt created by fraud of the bankrupt. Guild v. Butler, 122 Mass. 498. Mudge v. Wilmot, 124 Mass. 493, and 103 U. S. 217.

But as it differs from ordinary proceedings in bankruptcy in leaving the estate in the control of the bankrupt, instead of committing the administration of the estate to assignees or trustees appointed by the court, the act of Congress has made it an express condition to its taking effect against any creditor, that his name and address and the amount of his debt should be set forth in the preliminary statement of the debtor, as originally filed with the object of securing notice to all creditors, or as afterwards amended by leave of the court in bankruptcy upon like notice; and a creditor, whose name or the amount of whose debt is not truly stated in the debtor’s schedule, is not affected or prejudiced by the composition, but may sue the debtor at law as if no proceedings for composition had been had. Ex parte Paper Staining Co. L. R. 8 Ch. 595. Ex parte Lang, 5 Ch. D. 971. Breslauer v. Brown, 3 App. Cas. 672. Burliner v. Royle, 5 C. P. D. 354. Oppenheim v. Jackson, 48 L. J. (N. S.) C. P. 441, and 49 L. J. (N. S.) C. P. 216. Woolsey v. Hogan, 124 Mass. 497. Hewes v. Rand, 129 Mass. 519. MacMahon v. Jacobs, 129 Mass. 524 note.

The only explanation or qualification of this in the act of Congress is as follows: “ Where a debt arises on a bill of exchange or promissory note, if the debtor shall be ignorant of the holder of any such bill of exchange or promissory note, he shall be required to state the amount of such bill or note, the date on which it falls due, the name of the acceptor and of the person to whom it is payable, and any other particulars within his knowledge respecting the same; and the insertion of such particulars shall be deemed a sufficient description by the debtor in respect to such debt.”

The note in suit was made by Eaton, payable to Parsons or order, and at the same time indorsed in blank by Parsons and by the defendant, and was delivered at its inception to Jane P. Stone, the plaintiff’s wife, who died in 1875, and the plaintiff took out letters of administration on her estate in 1878, and brings this action as her administrator. At the time of the filing of the defendant’s schedule, in 1876, Mrs. Stone was dead, the plaintiff as her husband was entitled to administer on her estate, but no letters of administration had been taken out, and he had personally no title in the note.

The description of the holder of this note in the schedule, as “ Alanson Stone, residence unknown,” without anything to show that the note belonged to the estate of the wife, is not a sufficient description of the holder of the note to satisfy the general provision of the statute. If the case can be treated as one in which the defendant was “ ignorant of the holder,” within the meaning of the special provision as to promissory notes, the description is insufficient for want of a true statement of the name of the payee, as required by that provision. Ex parte Mathewes, L. R. 10 Ch. 304.

The plaintiff has done nothing to waive his rights against the defendant. There is no evidence that the attorney had any authority to do so; and that he intended no such waiver is shown by his having given a receipt for the money paid as on account of the note, instead of signing the form sent to him, which purported to be a receipt in full under the composition.

The objection made in argument to the validity of the plaintiff’s letters of administration does not appear by the bill of exceptions to have been taken at the trial, and is therefore not open in this court. Exceptions overruled.