Page images
PDF
EPUB

Vol. IV.]

MAYBIN V. RAYMOND.

[No. 1.

fully obtained in this country, because the reason upon which they were founded in England did not exist here.

In the case of Slywright and Page, 1 Leon. 167, it was said by the whole court of common pleas that the meaning of the statute of the 32 Hen. 8, concerning maintenance, was "to repress the practices of many who, when they thought they had title or right to any land, for the furtherance of their pretended right conveyed their interest in some part thereof to great persons, and with their countenance did oppress the possessors.' Blackstone speaks of the offence of champerty as "perverting the process of law into an engine of oppression."

[ocr errors]

The same reasons were given for the rule of the common law that a chose in action could not be assigned. "Nothing," says Coke, "in action, entry, and reëntry can be granted over, for or under color thereof pretended titles might be granted to great men whereby right might be trodden down and the weak oppressed.' Co. Litt. 14 a.

[ocr errors]

It has been well remarked that feeble, partial, and corrupt must have been the administration of justice when such a reason could have force. Thallhimer v. Brinkerhoff, 3 Cow. 543.

The rule that a chose in action cannot be assigned has long since been. exploded, because the reason upon which it rested has ceased to exist. And the ideas of the guilt of champerty and maintenance have measurably disappeared, and generally it is not now considered in this country a crime to aid the lawful suit of another with money and services, in consideration of a share in the recovery. Thallhimer v. Brinkerhoff, supra; Lyth v. State, 17 Ark. 608; Bayard v. Lane, 3 Harr. (Del.) 139. Where the government is defendant, the grounds upon which the offence of champerty were supposed to rest cannot, in the nature of the case, exist. In such cases as the one under consideration, the government invites the suits of her citizens having lawful claims, and is in no danger of suffering injustice, no matter how great and influential those are who are aiding in their prosecution. The objection that the contract under consideration is champerty cannot therefore prevail.

It seems to me clear that the district court, in making the decree now under review, did right in directing the payment of the compensation of Harris & Harris and Bartley & Casey out of the fund. Maybin, when competent to contract, had agreed to pay them this compensation, and they had, without objection by the assignee, rendered the services and accomplished the object for which the allowance was made. Therefore, unless some obstacle appears in the consideration of other questions raised in the case, that part of the decree of the district court under consideration ought to be affirmed, and the petition of review filed by Raymond dismissed.

The questions referred to are made by the counsel for Maybin upon his petition to review so much of the decree of the district court as allowed Adam & Speed and Jenner the sum of $17,552.

The objections upon which the counsel for Maybin rely reach to the entire decree of the district court. They assert that the district court had no jurisdiction to make the decree. They claim this on several grounds: First. Because the proceeding in bankruptcy was completed and concluded before Raymond was authorized to prosecute the claim in the court of claims, and that the court had therefore no authority to make that order

1

Vol. IV.]

MAYBIN v. RAYMOND.

[No. 1.

or any subsequent order in the bankruptcy. This view is based on the alleged fact that the bankrupt Maybin, having been discharged about the 25th of January, 1870, Raymond, his assignee, was subsequently, but soon after also discharged, and that this ended and closed the bankruptcy proceedings, and all proceedings thereafter in said bankruptcy were without jurisdiction, and void.

If the facts as claimed were borne out by the record, I should feel inclined to hold on this point with the attorneys for Maybin. But as I read the record, Raymond never was discharged as assignee. It is true a discharge written upon a printed blank, without date and signed by the register, is found among the files of the bankruptcy of Maybin, and doubtless this discharge was signed by the register soon after the date of the discharge of the bankrupt himself.

But it appears farther from the record that on April 10, 1873, Raymond filed a petition in the district court, in which he represented that he was embarrassed in the performance of his duty as assignee, by the said paper purporting to be his discharge as assignee; that said paper was signed without being applied for; that the date was purposely omitted, and that it was inadvertently put by the register among the papers in the cause, when they were returned into court.

Upon this petition the court acted, and found that said discharge was inadvertently made and filed in said cause, and ordered it to be annulled. The mere inadvertent filing of a discharge among the records of a cause does not paralyze a court and put an end to the case. A court at any time, on the truth being made to appear, would have the power to order such a paper to be stricken from the files.

"A court has power at a subsequent term to set right mere forms in its judgments, to correct misprisions of its clerks, and to correct any mere clerical errors so as to conform the record to the truth." The Bank v. Labilat, 1 Woods, 13.

When therefore it was made to appear that the discharge of an assignee had inadvertently found its way among the files of the court, the court had power to order the paper to stand for naught, and the assignee to proceed in the discharge of his duties; and this the court did. The assignee was, therefore, in fact never discharged.

Second. It is further claimed, that the discharge of the bankrupt on January 25, 1870, was an adjudication that he had surrendered all his property for the benefit of his creditors, and that the assignee had no right, although he might afterwards discover property of the bankrupt which the bankrupt had failed to put upon his schedules, to bring it into the bankruptcy without first setting aside the discharge of the bankrupt; that this had never been done, and that the time within which it could be done had elapsed.

I do not think that the discharge of a bankrupt was intended to have the effect claimed.

Generally, a bankrupt may apply for his discharge at any time after the expiration of six months, and if no debts have been proved and no assets have come to the hands of the assignee, he may apply after the expiration of sixty days from the adjudication.

A discharge once granted can only be annulled on the ground of fraud.

[ocr errors]

Vol. IV.]

MAYBIN U. RAYMOND.

[No. 1.

Rev. Stats. §§ 5110, 5120. So that if the theory under consideration is correct where a bankrupt inadvertently omits property from his schedule and gets his discharge fairly, newly discovered assets can never be reached by the assignee, because the discharge can never be set aside. An interpretation of the law which leads to such results must surely be unsound. The fact is, that the adjudication of bankruptcy vests in the assignee the title to all property of the bankrupt not exempt, whether the same is placed on the schedules or not; and without reference to the discharge of the bankrupt it is the duty of the assignee to collect the assets, and apply them to the payment of the debts, and a discharge of the bankrupt. interposes no obstacle to the performance of this duty.

Third. It is claimed that if the assignee acquired any right to the claim of Maybin against the United States, he is barred of that right because he did not prosecute it within two years; that is to say, because he did not have himself substituted for Maybin as plaintiff in the suit pending in the court of claims until after the expiration of two years from his appointment as assignee. Rev. Stat. § 5057.

If it be conceded that under the circumstances the assignee was barred, it seems clear that Maybin cannot now avail himself of that fact. The limitation is for the benefit of defendants in the actions prosecuted by the assignee. If the limitation of the statute was effectual to bar the assignee, the United States might have set up the bar. But that was not done; after the suit of the assignee has been allowed to progress to judgment, and the money has been collected by him, it seems to be too late for the bankrupt to intervene and set up the bar of the statute.

I am of opinion, therefore, that none of the grounds relied on by counsel for Maybin, to show that the district court had no jurisdiction to make the decree complained of, are well taken.

This brings up the merits of the revisory petition filed by Maybin. The petition claims that the allowance by the district court to Adam & Speed and Jenner of $17,552.50 was not justified, and I think the objection to this allowance is sustained by the facts of the case. It is made perfectly clear by the record that the court when it authorized Raymond, the assignee, to employ an attorney to prosecute the claim of the bankrupt against the United States, for the compensation of one half the amount recovered, did so in ignorance of the facts of the case; and that this ignorance resulted from the suppression by the assignee of facts which must have been known to him, and the fact of such suppression was known to the attorneys with whom he subsequently contracted. It is not to be supposed that if the court had been advised that the claim of Maybin was already in course of prosecution in the court of claims, and almost ready for judgment, and that the attorneys prosecuting the claim had a contract with Maybin for one half the amount to be recovered for their compensation, that under these circumstances the court would have authorized the employment of other counsel for the assignee, who was to receive the other half of the money for their services. The petition filed by the assignee for authority to employ counsel left the court in the dark as to the real state of the case; and the order of the court allowing the assignee to employ counsel who were to receive one half the recovery for their services was not binding upon the court or the parties.

Vol. IV.]

MAYBIN V. RAYMOND.

[No. 1.

But aside from this, the services which Adam & Speed contracted to render, and for which they were to receive one half the amount recovered by them, were never rendered.

What were the services they agreed to perform? The petition of the assignee for authority to employ counsel represented that among the assets of the bankrupt there was a claim against the United States for cotton taken from bankrupt's plantation; that in the prosecution of said claim it would be necessary to employ counsel; that it was customary in such cases for the claimant to enter into contract with the attorney to pay him for his services in the collection of the same fifty per centum of the amount recovered, the claimant to be at no further expense in making said collection; and the petition prayed that petitioner be authorized to employ counsel to prosecute the claim on the said terms, and the court authorized the contract to be made as prayed for in the petition.

In pursuance of this authority the assignee, on the same day the authority was given, entered into a contract in writing with Adam & Speed and Jenner, by which they agreed "to prosecute and recover a certain claim or debt due and owing to the estate of said bankrupt by and from the United States, for and on account of cotton taken from bankrupt's plantation during the rebellion." And the assignee agreed to pay them one half the amount recovered for their services.

From all this it appears that what Adam & Speed and Jenner were employed to do, and what they agreed to do, and for the doing of which they were to receive one half the amount recovered, was to prosecute and recover the claim against the United States. This they did not do, nor did they assist in doing. The record shows that the suit against the United States was prosecuted solely by Harris & Harris and their associates, and it fails to show any service performed by Adam & Speed and Jenner, or either of them, towards the recovery of the judgment against the United States.

Adam & Speed and Jenner did perform services for the assignee about the claim, but they were not the services contemplated by the order of the court or by the contract between the assignee and them. These services were the procuring the substitution of the assignee as plaintiff in the court of claims in place of the bankrupt, and the having Jenner substituted as attorney of record for plaintiff in place of Bartley & Casey. Doubtless these services were valuable to the estate of the bankrupt. They prevented the fund when recovered from going into the hands of Maybin, the bankrupt, and secured the possession of it to Raymond, the assignee. But the prosecution of the claim and the recovery of the money from the United States, by the final judgment of the supreme court, was done by Harris & Harris and their associates, and not by Adam & Speed and Jenner. It never entered into the contemplation of the court that Adam & Speed and Jenner were to be paid fifty per cent. of the recovery for preventing the fund from going into the possession of the bankrupt, and that the other fifty per cent. was to be paid to the attorneys of the bankrupt for their services in recovering the fund as against the United States.

In my opinion Adam & Speed and Jenner cannot claim under said con

tract:

(1.) Because the authority to make it was conferred by the court without a knowledge of the facts which the assignee must have known, and was

Vol. IV.]

ELKINS v. MCKEAN.

[No. 1.

bound to communicate; and (2.) Because none of the services contemplated by the order of the court and the contract between Adam & Speed and Jenner were performed. The services actually rendered were not those for which the assignee was authorized by the court to pay fifty per cent. of the recovery.

But nevertheless Adam & Speed and Jenner have performed a valuable service to the bankrupt's estate, and they should be paid for such services what they are reasonably worth.

The result of my views is, that the petition of review filed by John B. Raymond, assignee, must be dismissed at the costs of the bankrupt estate, and that so much of the decree as directs the payment to Harris & Harris and Bartley & Casey of $34,525.54 must be affirmed.

That so much of the revisory petition filed by J. W. Maybin, as complains of the order directing the payment to Adam & Speed and Jenner of $17,552.50 by said assignee be sustained, and so much of said decree as directs the payment to said attorneys of said sum be reversed; and that the district court be required to ascertain in such manner as shall seem to it most proper what sum of money is due to Adam & Speed and Jenner for their services in the premises, and to direct the payment to them of such sum out of the fund.

SUPREME COURT OF PENNSYLVANIA.

(To appear in 29 P. F. Smith.)

EXPRESSION OF OPINION AS TO FACTS BY COURT.
CAUSED BY EXPLOSION OF UNSAFE OIL.

[ocr errors]

ACTION FOR DEATH EVIDENCE. RES GESTE.

ELKINS, BLY & CO. v. MCKEAN.

1. In a suit against a refiner and vendor of petroleum, for the death of plaintiff's husband, alleged to have been caused by the explosion of the oil, the allegation and evidence of plaintiff were that the oil exploded in a lamp in his hand whilst he was walking quietly; the defendant's allegation and evidence were that the death was caused by his tripping and falling with the lamp in his hand. In charging, the court said, "Was the death occasioned by the explosion at the time and in the manner claimed by the plaintiff? In regard to this there can be no doubt whatever." Held to be error; whether the death was caused by the explosion as alleged by the plaintiff was for the jury. 2. The declaration averred that the defendants wilfully sold the oil for lighting purposes, "knowing that it was highly inflammable, explosive, and unsafe," &c. There was evidence that the oil had been sold by defendants, but none that the sale was with wilful knowledge of its dangerous character: Held to be error to submit the case to the jury.

3. Statements as to the cause of the accident made by the deceased at and about the time of its occurrence, whilst he was covered with fire, were competent evidence as part of res gesta.

4. The fact that the oil had passed through a number of intervening vendors before it was procured by the deceased would not prevent a recovery against the defendants, if their guilty knowledge and the identity of the oil were established.

5. The responsibility of the manufacturers would attach from their putting the oil on the market and holding out that it might be safely used as illuminating oil.

« PreviousContinue »