Assignment. Jurisdiction. Bills and Notes. Surety. Bankruptcy. Assuming that the assignee of an insolvent corporation organized under the laws of another State, who was appointed under the statutory provisions of that State, cannot sue in a court of this Commonwealth in his own name on a promissory note payable to the corporation, which here was not passed upon, there is no reason why he should not bring an action on the note in the name of the corporation.
An action on a promissory note can be maintained in the name of the payee by one rightfully in possession of the note without regard to the question who is the owner of it.
By the U.S. bankruptcy act of 1898, § 16, the discharge of the principal upon a promissory note does not affect the liability of a surety.
A provision in a promissory note payable to a bank signed by a principal and two sureties, that "the sureties agree to be liable without notice so long as there is any liability of the principal, although the bank may grant extensions from time to time for the payment of all or any part of this note," is merely an agreement in advance that the time for payment may be extended without discharging the sureties from liability, and is not a limitation of the liability of the sureties which would operate to discharge them in case of the discharge in bankruptcy of the principal.
KNOWLTON, C.J.
The plaintiff, a banking corporation established in New Hampshire, is the holder, for a valuable consideration, of the note declared on, signed by the defendant as a surety. Under c. 162 of the Public Statutes of New Hampshire, an assignee of the plaintiff's property and effects was appointed by the court, who thereby became the holder of the legal title to all this property. In the Matter of the White Mountains Bank, 46 N.H. 143. Hall v. Bracket, 60 N.H. 215.
The first defence set up is that an action cannot be maintained in the name of the plaintiff. This defence is not well founded. Even if the assignee, with his statutory title in a foreign State, could not have maintained an action in this State in his own name, there is no reason why he could not cause an action to be brought in the name of the corporation. Hayward v. Leeson, 176 Mass. 310. Homer v. Barr Pumping Engine Co. 180 Mass. 163. Wilson v. Welch, 157 Mass. 77. Campbell Zell Co. v. Barr Pumping Engine Co. 182 Mass. 304. An action can be maintained in the name of the payee of a note, without regard to the question who is the owner of it. Spofford v. Norton, 126 Mass. 533.
The discharge in bankruptcy of the principal upon the note does not affect the liability of the surety. U.S. St. 1898, c. 541, § 16. Guild v. Butler, 122 Mass. 498. Cochrane v. Cushing, 124 Mass. 219. The provision in the note that "the sureties agree to be liable without notice, so long as there is any liability of the principal, although the bank may grant extensions from time to time for the payment of all or any part of this note," is not a limitation of the liability of the sureties, but an agreement in advance that the time for payment may be extended without discharging them from liability.
Exceptions overruled.