The general rule is conceded, that the obligee in a bond is alone authorized to maintain an action thereon. But in the case of deceased persons, or those whose estates have passed into liquidation under bankrupt or insolvent laws, a modification of this rule exists. The principle of the rule is not disregarded, but the law allows the legal representative of the party to do those things which might in other cases be done by the obligee solely. Our statute of insolvency is very full and comprehensive in its terms, giving to the assignee all the property, real and personal, of the insolvent, and also all the like remedies to recover the debts and effects of the insolvent in the name of such assignee. St. 1838, c. 163, § 5. Under this provision, no question exists as to the right of the assignee to sue in his own name all choses in action of the insolvent that pass to the assignee, and to come in and prosecute in his name all actions pending in the name of the insolvent, that have reference to the assets for distribution.
In the present case, no question could be made of the right of the assignee to sue the bond in his own name, if it had been executed before the time of the first publication of the insolvency. The difficulty in the case arises from the fact that this bond was executed on the 27th of March 1855, and the relation of obligor and obligee between the parties to this bond arose after the party went into insolvency, and at a time when new debts to the insolvent, or contracts made with him, would not enure to the assignee for the benefit of the creditors.
Had this been in fact such new debt, accruing subsequently, and not available to the assignee for the benefit of creditors, the objection taken to maintaining the action in the name of any other person than the obligee would certainly defeat this
It appears that the insolvent, John M. Way, at the time of the institution of the insolvent proceedings, on the 10th of February 1855, had an action pending for the recovery of a demand that would pass to his assignee, and that on the 7th of March judgment was rendered in that action in favor of said Way; which was necessarily so rendered, as at that time there was no assignee, and no person who could come in and prosecute the action, for the assignee was appointed on the 8th of March. Of this judgment, thus rendered, the assignee attempted to enforce payment by the ordinary process of execution, and arrest of the body of the debtor. The debtor, when arrested, applied for the benefit of the prison limits, as he had the right to do, and complied with the provisions of law in that respect by giving a proper bond to the judgment creditor. The bond was therefore properly given. But it was a bond in the name of Way to secure the surrender of a party arrested on an execution for a debt that passed to Way’s assignee, and a claim that the assignee might enforce. A suit might have bren brought on such judgment in the name of the assignee; and, as it seems to us, the debt being a part of the assets of the insolvent, to be administered by the assignee, any further legal processes that might be required, in consequence of the debtor’s availing himself of the prison limits, to enforce payment of the same, may be issued in the name of the assignee.
The only other exception that was urged at the argument was to the ruling of the court, that the paper introduced as minutes of the magistrate, in the proceedings in reference to talcing the poor debtors’ oath, was not evidence. Confining ourselves strictly to the exception as presented, and without expressing any opinion upon the weight of the independent e/idenee, the court are of opinion that the paper offered was not evidence of an adjournment of the proceedings before oho magistrate, as it
Exceptions overruled.