Upon the death of the assignee, under the bankrupt law of the
United States, the right of action for a debt due to the bankrupt
vested in the executor of the assignee.
If an executor do not cause himself to be made party to a suit
brought in the lifetime and in the name of the testator and pending
at his death, it is to be considered as a voluntary abandonment of
the action, so as to exclude the executor from the equity of the
exceptions to the statute of limitations.
At common law, no action could be renewed by Journey's accounts
in a case of voluntary abandonment.
The cases which, though literally within the words of the
statute of limitations, have been held to be without its spirit,
are those only in which circumstances intervened which rendered it
impossible or incompetent with known and established principles
that a cause of action could be revived by the renewal of the
contract or enforced by a suit at law within the time
prescribed.
The object of the law is to secure the individual from the
machinations of dishonesty when attempted under the advantages
attendant upon lapse of time, loss of papers, and death of
witnesses.
Error to the Circuit Court for the District of Maryland in an
action of covenant on a policy of insurance
Page 12 U. S. 85
under seal. The defendants pleaded the Maryland statute of
limitation of 12 years, 1715, ch. 23, § 6, which enacts
"That no specialty whatsoever shall be good and pleadable or
admitted in evidence against any person or persons of this province
after the principal debtor and creditor have been both dead 12
years or the debt or thing in action above 12 years standing,"
with a saving of 5 years in cases of infancy, &c.
The replication to this plea stated in substance the following
facts:
That the cause of action accrued on 1 May, 1797. That McKean was
declared a bankrupt, and on 19 March, 1801, his estate was duly
assigned to Thomas Allibone, who, on 6 October, 1806, instituted a
suit on the policy and died on 1 August, 1809, whereby the suit was
abated. That on 11 January, 1810, the plaintiffs were by the
commissioners appointed assignees in pursuance of the choice of the
creditors regularly convened for that purpose, and brought the
present action at the next term after the death of Allibone, the
former assignee. To this replication there was a general
demurrer.
The judgment of the court below upon the demurrer was in favor
of the defendants, and the plaintiffs brought their writ of
error.
Page 12 U. S. 91
JOHNSON, J. delivered the opinion of the Court as follows:
This is an action of covenant brought on a policy of insurance
under seal. The facts as made out in the pleadings are these:
The cause of action accrued on 1 May, 1797. McKean was declared
a bankrupt, and on 19 March, 1801, his estate was assigned to
Thomas Allibone. On 6 October, 1806, the assignee instituted a suit
on this policy and died on 1 August, 1809.
On 11 January, 1810, the plaintiffs were
Page 12 U. S. 92
appointed assignees in pursuance of the choice of the creditors
regularly convened for that purpose, and brought the present action
to the term next after the death of the assignee.
The plea is the statute of limitations. To this is filed a
special replication setting forth the above facts with a view to
sustain an exception from the operation of the statute. The case
comes up on a demurrer to the replication, and for the defendant
there were two points made at bar, 1st, that the action is not
maintainable at all by the present plaintiffs, because the bankrupt
act makes no provision for the appointment of a new assignee upon
the demise of the first; 2d, that the right of action vests in his
personal representative and could be maintained by him -- that the
abatement by the death of the first assignee was a voluntary
abandonment of the suit, and put the case of the plaintiffs out of
the reason of the exceptions from the operation of the statute. In
support of the action, it was contended that the former suit abated
by the death of the first assignee -- that the right did not vest
in his executors, because it was a mere trust or agency -- that the
right of substituting the new assignees in the action is secured
only in the case of removal by the creditors -- that this case is
without the statute of limitations upon an equitable construction
of that statute -- and lastly that this action is a good
continuance of the former by Journey's account.
We are of opinion that the plea of the statute of limitations
must be sustained. On the first point made by the defendant the
Court would be understood to give no opinion. Being satisfied that
the plaintiff has not brought himself within any one of the
exceptions which have been admitted to the statute of limitations,
and feeling no inclination to multiply those exceptions, it
disposes of the case upon the second ground alone. The cases which,
though literally within the words of the statute, have been held to
be without its spirit are those only in which circumstances
intervened which rendered it impossible or inconsistent with known
and established principles that a cause of action could be revived
by the renewal of the contract or enforced by a suit at law within
the time prescribed. The object
Page 12 U. S. 93
of the law is to secure the individual from the machinations of
dishonesty when attempted under the advantages attendant upon lapse
of time, loss of papers, and death of witnesses. But when cases
present themselves in which no laches can be imputed to the
plaintiffs, but great injustice would be done by applying to such
cases the effect of the statute, the conclusion of reason and of
the law is that such cases were not in the mind of the legislature
when enacting that law. Such are the cases of a want of parties,
plaintiff or defendant, whereby a temporary suspension of legal
remedy takes place. But in no case of a voluntary abandonment of an
action has an exception to the statute of limitations been
supported. And such, we are of opinion, is the case before us.
Whether it was or was not a case in which the bankrupt law
authorizes the appointment of the present assignee we deem
immaterial. The case is certainly not within the express letter of
the statute, and it is only under its equitable and perhaps its
proper construction that the appointment of the new assignees (the
present plaintiffs) can be supported. But the same equity which
would support this appointment would support the substitution of
the new assignees for the former in the existing action. We are,
however, of opinion that the first assignee was not a mere naked
agent or attorney for the creditors. The words of the bankrupt act,
sec. 13, are that the debts assigned to him shall be vested in him
as if they had been contracts made with himself originally. Now one
necessary incident to such a contract would be that the right of
action would vest in his personal representative, and the act of
Congress saves the suit from abatement by authorizing the
substitution of the executor or administrators instead of the
deceased plaintiff. The same answer applies to the antiquated
doctrine of continuance by Journey's account. The fact is that the
mode of continuing a suit in the name of the executor or
administrator provided for by statute is a complete substitute for
the continuance by Journey's account. But even at common law, such
a continuance or connection of suit was allowed in no case of
voluntary abandonment, and if the benefit of it was intended to be
asserted, it was necessary to claim it in the form of renewing the
action.
Judgment affirmed with costs.