Murphy v. Cochran — 1 Hill & Den. 339

Majority

p. 339

Murphy vs. Cochran.

Headnote

A judgment is a chose in action, within the statute, (2 R. S. 274, § 5, 2d cd.) authorizing assignees, in certain cases, to sue in their own names: and a scire facias quare executionem non, is a suit, within the same statute.

Where the assignee of a covenant sued, and recovered judgment thereon in the name of the assignor, after which the latter died, and no executors or administrators were appointed upon his estate; held, that the assignee might sue out a scin facias, &c. in his own name.

Semble, that the scire facias, in such case, should show the residence of the assignor at the time of his death.

The scire facias reciting the assignment as under the assignor’s hand and seal, sufficiently showed that it was made upon a valuable consideration, without the fact being otherwise alleged.

Though the covenant was to the assignor and another jointly, yet, as judgment upon it had been recovered in the assignor’s name alone, the defendant was held estopped from denying the assignor’s right to assign.

In scire facias by an assignee, it need not appear that the defendant had notice of the assignment.

A scire facias in the usual form, setting out that execution yet remains to be made, is sufficient, without showing in terms that the judgment is unsatisfied. If such be the fact, the defendant may plead it, and that will bar the suit.

Where an assignee sues out a scire facias in his own name, the assignment being a material and traversable fact, must be set forth with circumstances of time and place, or the defendant may demur.

p. 340

Demurrer to scire facias. The writ recited, that John Snyder recovered judgment in this court on or about the 14th of May, 1826, against Walter L. Cochran, for $3634,27, or thereabouts, for his damages, &c. as well on occasion of a breach of covenant,. &c. made by the said Walter to the said John, as for his costs, &c. That some time in the summer of 1838, in the town of Morristown, in the county of St. Lawrence, the said John died intestate, and no letters of administration have since been granted of or upon his estate. That said John, in his life-time, for a valuable consideration, under his proper hand and seal, duly assigned to one Henry Murphy a right of action upon a covenant of warranty in a deed bearing date September 13th, 1813, executed by said Walter and Cornelia his wife to said John and Elizabeth his wife, (fee. That, in pursuance of said assignment, said Henry, in the name of said John, on, (fee. obtained the judgment aforesaid. And now, in behalf of said Henry, assignee as •aforesaid, we having been informed that although judgment, &c. yet execution, (fee. still remains to be made, &c.; and we being willing, &c. do command, (fee. that you make known to the said Walter, (fee.

The defendant demurred, assigning the following causes of demurrer: 1. That it is not alleged where said John resided at the time of his death, nor to what surrogate the granting of letters belonged: 2. That the covenant of warranty, so far as appears by the scire facias, was not the plaintiff’s property by virtue of the assignment: 3. That neither the time nor date of the assignment, nor notice thereof to the defendant, is set forth : 4. It is not alleged that the judgment remains unsatisfied: 5. The statute does not entitle the plaintiff to execution in his own name, it not extending to the case made by the sci. fa.

The plaintiff joined in demurrer’.

M. T. Reynolds, for the defendant.

J. A. Spencer, for the plaintiff.

This scire facias is founded on the 2 R. S. 274, 2d ed., § 5, which enacts, that the assignee, for a valuable consideration, of any bond, note or other chose in action, which has been or may hereafter be assigned, if the assignor be dead and there be no executors or administrators appointed upon his estate, or if they have no interest, <fcc. or refuse, &c. may sue and recover in his own name, «fee.; and the defendant, until due notice of such assignment, <fcc. may avail himself of any defence he might have had against the assignor.

1. If necessary to set forth the residence of Snyder when he died, .as it may have been, it is sufficiently done.

2. The assignment is .shown to have been under the hand and seal of the assignor, which sufficiently imports a valuable consideration.

3. The defendant cannot now object that Snyder was not the sole covenantee, for the original suit and judgment were in his name alone; and though the covenant ran to him and his wife, yet it may have survived to him by the death of his wife. Whether he had a right to sue in his own name or not, however, he did sue, (or rather, the now plaintiff for him,) and recovered judgment in his (Snyder’s) own name; and the defendant is estopped to deny that he (Snyder) was solely interested. It would be no defence against Snyder, if alive, and suing in his own name; and so not a defence at the suit of his assignee under the statute. It must be taken, that Snyder alone had a right to assign the covenant to the plaintiff; and this, it is averred, he did do before judgment. The present plaintiff, therefore, must be considered as the equitable assignee of the judgment, as he was before of the covenant. Thus, he is brought within the word assignee, used in the statute.

4. It was not necessary to aver notice of the assignment to the defendant. This, with the time when given, would rather come by way of replication, to oust him of any defence he might set up by plea; or, in a proper case, the notice, <fec. may be given in evidence as an answer to any defence which may be interposed under the general issue.

p. 342

The fact of notice can in no way become material till a defence is interposed, which; if it arise after notice, will not be available.

5. The assignee of & judgment may sue. The words, chose in action, used by the statute, comprehend a judgment.

6. The assignee may have a scire facias. The statute is, that he may sue, without mentioning any particular suit. A spire facias is a suit qr action. (Toml. Law Diet. tit. Scire Facias, I. Id. tit. Suit.) The statute means, that the assignee shall, in case of the death of the assignor, &c. have the same remedy in his own name, as the assignor, if alive, might have. The case does not, therefore, as was supposed on the argument, depend on the particular provisions of the revised statutes concerning the writ of scire facias, so far as the ques-. tion of the party plaintiff is concerned. The statute under which the plaintiff sues, brings over or extends the statute of scire facias to his case.

7. Another point made is, that the scire facias does not recite that the judgment is unsatisfied. True; nor need it do so. This is a scire facias quare executionem non; and it is enough to follow the established precedents in such case, saying, as it does, that execution yet remains to he made. If the judgment be paid, the defendant may plead the payment; and that will be a bar to the suit.

8. I believe I have now considered every objection which was taken at the bar, except one mentioned in the third specification of causes for the demurrer, viz. that neither the time nor date of the assignment is shown. The assignment is a material and traversable fact; and must therefore, according to the well settled rules of pleading, be set forth with circumstances of time and place) if these be called for, as time is here, by special demurrer.

We are of opinion, that none of the defendant’s objections aré well taken except the one last mentioned, which is merely formal. For this cause, however, there must be judgment for the defendant, with leave to amend.

Ordered accordingly.