Raymond v. Johnson — 11 Johns. 488

Majority

p. 488

Raymond against Johnson.

NEW YORK

October, 1814.

Headnote

J9HN80K. Although the cognif.e',11and right of an aí t'ife' hisoivent stato°-f y'e/’an action brought in this state must he in the name of the insolvent.

haTbeéa%om insolvent’7!)"Reassignment the suit ^ win’ hb discharge, íinuein the in-loathe benefit

!n°the namíof $m assignor, by person benefieially interested, the defendavaii himself tiff’s'1 want^'of thaTsomeother theS°one thfOT 4he°s%uiteneis partyhVeSnefie dally interest-

, . THIS was an action of assumpsit. Plea, the general issue It was originally commenced in the mayor’s court of the city °f New-York, in the vacation before February term, 1812, of that court; and was removed into this court by habeas corpus. cause was tried at the New-York sittings, in Aprils 1814, where a verdict was taken for the plaintiff, for 411 dollars and . , 1 7 76 cents, subject to the opinion of the court on the following C8.S6» ,r

^ On the 3d of August, 1807, the plaintiff made a promissory note f°r 487 dollars and 83 cents, at ninety days, payable to 0ne Lloyd, and endorsed by Lloyd to one Bruce ; but was re-tamed by the plaintiff in his possession. A few days after, the plaintiff borrowed of the defendant the sum of 200 dollars, for which he gave the defendant his due bill, and at the same time delivered him the promissory note as collateral security, under an agreement, that on the payment of the said sum with interest, defendant should return the said note to the plaintiff. In October, 1807, in the same year, Bruce, the second indorsor on the note, sold and delivered to the defendant, a quantity of . , bread, for which he promised to pay Bruce, who was then ignorant that the defendant held the note endorsed by him, the sum of 500 dollars in thirty days. The plaintiff having neglected to pay the defendant the money borrowed of him, and the note, which was delivered as collateral security, not having been paid, it was protested for non-payment, and notice given to ^ie indorsors: and when, at the expiration of the thirty days» Bruce called on the defendant for payment of the bread sold him, the defendant tendered Bruce, in payment, the said note» ' and the balance in cash, which Bruce, who knew himself to be fixed as indorsor, but was unacquainted with the agreement between the plaintiff and defendant, accepted in satisfaction, and discharged the debt. In the latter part of 1811, the plaintiff took up the note, by giving Bruce other notes, which he had drawn, and which were endorsed by one Childs, which notes have been since paid. About the same time, but before the commencement of the suit in the mayor’s court, and before the plaintiff’s discharge as an insolvent, bu,t after he had advertised

p. 489

Ms intention to take the benefit of the act, in consideration that Childs had advanced money to maintain the plaintiff’s family, and intended to make further advances for the plaintiff, delivered the note to Childs, and verbally assigned him his interest therein, uid empowered Mm to bring an action in his name. The plaintiff, in April, 1811,, was discharged, and Ms estate assigned under the insolvent act of 1811; and he had previously, in January, 1810, been discharged in the state of Ncm-Jersey,, and all his estate, real and personal, was there assigned in trust for the benefit of his creditors, to one Abraham Allen.

Champlin, for the plaintiff,

contended, that the suit, having been commenced in the court below, before the plaintiff was discharged as an insolvent, or had assigned his estate under the act of April, 1811, the assignment could not affect the plaintiff’s right to recover, notwithstanding the subsequent removal of the cause into this court; that the proof of the assignment by the plaintiff to Childs, and of the consideration of such assignment, was sufficient. That the assignment made by the plaintiff on the 8th of January, 1810, in New-Jersey, was not admissible in evidence under the general issue, without notice thereof; but the same ought to have been pleaded; that even if it were admissible as legal evidence, the demand for which this suit was brought did not pass by that assignment He cited Bird \o Caritat. ( 2 Johns. Rep, 342 .) 1 Chitty's Plead. 14, 3 Term Rep. 433. 2 Wils. 372.

Henry, contra, contended,

that the plointiii’s right of action became vested and perfect in 180/, when Bruce paid the note to Johnson, for the excess of Johnson's demand, and immediately became a debt, due to the plaintiff. That the plaintiff having, under the insolvent law of Ners-Jersey, assigned the debt to Allen, he alone was entitled to sue for and recover it. That it was true, that a chose in action must be sued for in the name of the assignee; that a suit commenced before the plaintiff’s discharge, may be carried on, in his name, for the benefit of his assignees; and that tins court will protect the rights of a bona pie assignee; but here the assignment to Childs was in fraud of the first assignment. It was an attempt on the part of Childs to gain an undue preference. It was not a

p. 490

question between different classes of creditors, but whether & particular assignee should hold against every class of creditors-the distribution of the estates of insolvents and bankrupts. equality is to be observed. ^ J

. » In an action of assumpsit, every thing may be given in evidence under the general issue, which shows that the plaintiff *s not entitled to recover, except certain statute bars.^[1]

Childs had no right to use the plaintiff’s name. A recovery in this suit could not be pleaded in bar to another action' by Allen, brought in the plaintiff’s name, any more than a payment by the defendant to the plaintiff, after notice of the first assignment, would be good.

delivered the opinion of the court. The question which arises in this case is, whether the present action can be carried on in the name of Peter Raymond, he, at present, having no interest in the claim or demand for which the su¡t is brought. No objection, upon the trial, appears to have been made to the admission in evidence of the discharge of the plaintiff, under the insolvent law in Idem-Jersey, in the year 1810, and the assignment of his property to Abraham Allen. If the present cause of action passed under that assignment, the suit, when prosecuted in this state, is properly brought in the name of the insolvent. The foreign assignee would not be allowed to prosecute him in his own name, ( 2 Johns. Rep. 344 .) though the court will recognise and protect the right of the assignee. Nor can the discharge of the plaintiff under the insolvent law of this state affect the suit. It is a settled rule, in England, that when an action is commenced in the name of the bankrupt, before his act of bankruptcy, it does not abate, but the assignee may proceed in the name of the bankrupt. (1 Chitty’s Plead. 14. 3 Term Rep. 438.) The same reason exists for applying the rule to cases arising under our insolvent law, and the suit will be continued for the benefit of the assignee.

Admitting Childs to have become equitably entitled to the benefit of this suit, before action commenced, it cannot defeat the action. There was no such assignment or transfer made, as to enable him to maintain a suit in his own name. It is not pi etended by the defendant, that he has paid or satisfied the demand; and whoever may be entitled to the avails of the suit.

p. 491

the action is properly brought and carried on in the name of '¿he present plaintiff.

Whether the money is to be recovered for the benefit of Childs, or the assignee in New-Jersey, or the assignee here, is Immaterial to the defendant. He has no concern with that question, according to the doctrine of this court in the case of Alsop v. Caines. ( 10 Johns. Rep. 400 .) Judgment must accordingly be rendered for the plaintiff, upon the verdict as it stands.,

Judgment for the plaintiff