Prescott v. Hull — 17 Johns. 284

Majority

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Prescott against Hull.

Headnote

In an action agamsTthe1ma-ker of a note, ⅞¾⅛] ra bar that a recfwediiuhe Supreme Court (’where'theTotc was made and ided^)rtatS the suit of a creditor under ^foreign attachment &aS^as^n'absconding debt-the amouuf'of oT *⅛"* ”olet hL CTedfuPS hEis ’f íh defendant, the noti°r °f the tmsieemddeM- orof the plain-

that before (he commencement of the proceedings on the foreign attachment in Vermont, the plaintiff assigned and transferred the note, &.c. to A. is good ; the suit here being prosecuted for the benefit of the assignee, who was not before the court in V. nor a party to the proceedings there ; it being presumed that the court would have recognized the assignee and protected his rights, had they known of the assignment; and the proceedings there were, therefore, resinter alios acta, and it is not drawing them in question to say, that the assignee is not concluded by them ; but such replication ought to aver that the debt was assigned for a full and valuable consideration, and that .the .suit was prosecuting for the benefit of the assignee, otherwise it is bad on de murrer.

The assignment of a chose in action need not be by a writing under seal; a delivery of it, for a gooe and valuable consideration, is sufficient.

THIS was an action of assumpsit, on a promissory note, dated at Bennington, the 15th of September, 1815, by which *the defendant, for value received, promised to pay to the plaintiff, or bearer, forty-two tons of yellow ochre, to be de-livered in Bennington, in the state of Vermont. The decla-ration contained counts on the note, and the usual money counts. The defendant first pleaded non assumpsit, and after-wards, puis darrein continuance, except as to 11 dollars and 30 cents,, parcel, &c., in bar, stating, that at the time of making of the supposed promises, the parties were inhabitants of Ben-snington, in the state of Vermont, and setting forth an act of the legislature of that state, declaring, that if any person should have in his possession any money, goods, chattels, rights, or credits, of any person who should have secretly absconded from the state of Vermont, or keep concealed within the same, any creditor might cause such person or persons having such money, goods, chattels, rights, or credits, to be summoned as trustee of such absconding or concealed debtor, by a process to be issued against him, according to the form prescribed in act’ a,1<^ t0 served, ábe., and that when the trustee should appear in proper person at the court, such trustee if ⅛6 plaintiff requested it, be put to answer infcr-rogatories under oath, as to the money, &c., of the prin-c¡pa] debtor, in his possession, at any time before or since the service of such summons on him; and that if the trustee

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should appear at the court, and it should be made evident by his oath, or other proof, that such trustee had money, goods, chattels, rights, or credits of the principal debtor in his possession, at the time of the service of such process, or at any lime since, a record thereof should be made, and the said trustee should be liable to the plaintiff for the money, &e,, in his hands or possession, to the value of the judgment recovered against the principal debtor, if so much there be, and that execution should issue therefor: The plea further stated, that on the 11th of May, 1816, a suit was commenced, according to the laws of Vermont, under the said act, by the Safford Woollen, Cotton, and Linen Company of Bennington, in Vermont, against the defendant, at B., he then being trustee and debtor to the plaintiff, by reason of the same premises set forth in his declaration ; that the writ was issued in the form prescribed, &c., by which the defendant was required to appear at. ,]/., before #the Bennington county court, on the first day of June then next, to answer to the declaration of the said company, averring that the defendant had in his possession moneys, goods, chattels, rights, or credits of the plaintiff, to the value of 200 dollars; which writ was served and returned in due form, &e, ; and that such proceedings were had in such suit, that on the third Monday of December, 1816, the said suit was appealed from the said county court to the Supreme Court of Vermont, to the January term of that court, in 1817 ; and that the same was duly entered in the supreme court; and at the same court, the plaintiff appeared in and defended the said suit; and denied that he had secretly absconded from the said state, or had kept concealed within the same, at or previous to the commencing of the said suit against him; that the said Safford Company appeared in the said Supreme Court of Vermont, and averred that the plaintiff, Prescott, at the time of suing out and serving of the writ, was an absconding or concealed debtor, &c., and praying that the same might be inquired of by the country, &c. That on this issue joined, a day was given, ó <•., until the September term of that court, in the year last aforesaid, at which time the Safford Company and Prescott appeared, and a jury was impannelled, &c., who returned their verdict, by which they found that Prescott was an absconding debtor; and at which time, also, the defendant appeared, and made answers to interrogatories then and there exhibited to him. &.o., whether, at the commencement of the said suit, or since, he had any moneys, goods, chattels, rights, or credits of Prescott, the plaintiff, in his hands, and whether he had notice of the transfer of the note mentioned in the first count of the plaintiff’s declaration, before the commencement of the said suit of the Safford Company, to Abel & Lord, or to either of them : The plea further stated, that the said action was further continued before the said court to January term, 1818, when all the parties appeared by their attorneys; and that it was

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then and there considered by the said Supreme Court of Vermont, that the defendant was a trustee to the said Prescott, and then had in his hands credits to the amount of 154 dollars and 98 cents, out of which the defendant should be allowed #his costs taxed at 30 dollars and 45 cents; and that it was further considered by the said court, that Prescott was an absconding debtor, and that the said Safford Company, plaintiffs in the said action, should have and recover of the said Prescott, or of and against his effects in the hands of Ids said trustee, the sum of 71 dollars and 84 cents damages, and his costs, taxed at 41 dollars and 39 cents, which, together with the costs allowed the defendant, amounted to 143 dollars and 68 cents ; and the defendant averred that all and every the causes of action, «fee. in the plaintiffs declaration, are the same identical causes, «fee., by reason of which he was so considered and adjudged by the said court a trustee to the plaintiff, and to have in his hands credits to the amount of 154 dollars and 98 cents, &c., and were the very point and subject of the controversy, «fee., in the said suit, «fee.; and as to the 11 dollars and 30 cents, parcel, «fee., nil dicit, fyc.

The plaintiff replied, that before the commencement of the said suit by the Safford Company, against the defendant, as trustee and debtor of the plaintiff, and before any of the proceedings mentioned in the said plea of the defendant had been instituted, to wit, on the 23d day of December, 1815, he, the plaintiff, assigned and transferred the said several contracts, causes, and rights of action, in his said declaration specified and contained, to Oliver Abel and Lynds Lord, of Bennington, in the state of Vermont, of which assignment and transfer the defendant, afterwards, and before the commencement of the said suit by the said Safford Company, against the defendant, as trustee and debtor of the plaintiff, to wit, on the 23d of December, 1815, had due notice, at, «fee. And this, «fee. wherefore, «fee.

To this replication there was a demurrer and joinder in demurrer.

Mitchell, in support of the demurrer,

contended, 1. That the plaintiff was estopped by the judgment of the Supreme Court in Vermont, from alleging the assignment, or litigating a tact which had been judicially settled by a court of competent jurisdiction in Vermont, between two citizens *of that state. The plaintiff and all the parties appeared before that court, and litigated their rights ; and that court having adjudged, that the defendant was the trustee and debtor of the plaintiff by reason of the same note, have negatived the existence of the assignment stated in the plaintiff’s replication. Where any precise fact has been litigated, and decided by a court of competent jurisdiction, it is res judicata, and cannot be again called in question. (Outran v. Morewood, 3 East, 346. Taylor v.

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Bnjden, 8 Johns. Rep. 173 . 176. Hoyt v. Gelston, 13 Johns. Rep. J 41—156. S. C. 3 Wheaton’s Rep. 246.) The very fact put in issue, tried, and adjudged, in Vermont, is now at,tempted to be again brought in question. The proper mode of taking advantage of this matter of estoppel, where it appears in any previous pleading, is by demurrer. (1 Chitty’s PL 575, 576. 1 Sound. 326. n. 4. 7 Term Rep. 537.)

2. Should it be said that this suit is brought, for the benefit of Abel Of Lord, we answer, that the plaintiff' ought to have averred the fact in his replication, so that it might have been put in issue.

The defendant has been legally compelled, by a court of competent jurisdiction, to pay the money ; and, having paid it once, he ought not to be compelled to pay it a second time. This principle was laid down in Phillips v. Hunter, (2 Hen. Bl. 402.) and that decision was recognized by this court in Embree v. Hanna, ( 5 Johns. Rep. 101 .) and the case of Fisher v. Lane, (3 Wils. 297.) was disapproved. The parties are, at least, equal in equity, and melior-est conditio defendentis; but the defendant has higher equity, for, if he is obliged to pay the money a second time, he is without remedy; but the plaintiff’ would have a remedy.

3. There is no valid assignment. The replication does not aver any consideration whatever, nor that it was in writing, or sealed, or delivered, nor that, by the laws of Vermont, the debt could be assigned. An assignment, to be good against creditors, must be for an adequate consideration, and made bona fide. For aught that appears, the assignment was voluntary and fraudulent. (Winch v. Kelly, 1 Term Rep. 623. Perkins v. Parker, 8 Mass. Rep. 117 , *118.) The replication merely states, that the cause of action was assigned and transferred to A. & L.

Bit el, contra.

The true question intended to be brought before the court, on this demurrer, is, whether a,recovery under a foreign attachment, in another state, can be pleaded in bar to a suit here, in behalf of the assignees of the debt ? The demurrer admits the notice, if well pleaded. Are not the assignees of a chose in action, to be protected in a court of law ? A foreign attachment is a proceeding in rem, transferring a chose in action, by operation of law. (Kirby’s Rep. 129. 1 Dallas, 261. 9 Mass. Rep. 408 . 13 Johns. Rep. 206 .) Then, is an assignment by the mere operation of law, to overreach and defeat an assignment in fact ? The statutes authorizing foreign attachments apply only to the goods and chattels of the absconding debtor ; not to property, debts, or credits, which he had previously assigned. After the assignment of the debt, the absconding debtor had no property in it, which could be attached. (1 Laws of Vermont, 24.) None of the

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cases, either in England or in this country, give any further or greater effect to a foreign attachment.

Again ; estoppels affect only parties and privies; but Abel & Lord were not parties or privies to the suit in Vermont. They had no notice of the proceedings there, and ought not to be affected by them. (2 Madd. Ch. 156. Phillips’s Ev. 222. 4 1>I. Com. 283.) Unless they were called before the court in Vermont, their rights cannot, in any manner, be affected by its decision. Cases may be cited from the courts of all the states in which foreign attachments are allowed, to show that the defence set up by the defendant could not be maintained. Where the debtor of A. has made an express promise to pay the debt to A.’s factor, the debtor cannot be held, as the trustee of A., under a foreign attachment. (Staphorst v. Pearce, 4 Mass. Rep. 258 .) So the promisor, in a contract not negotiable, but which is assigned in equity, cannot be held as a trustee of the promisee, after the assignment. (Foster v. Sentiler, 4 Mass. Rep. 450 . 5 Mass, Rep. 210 . 7 Mass. Rep. 438 . 13 Mass. *Rep. 218. 3 Binney’s Rep. 394. 2 Gallis. Rep. 557. Swift’s £■«.351.)

As to the objection to the form of the replication; an assignment may be by parol, or by writing without seal. The words assigned and transferred, with an averment of notice, are all that is necessary; the assignment and notice constitute the substance of the plea; and this court will recognize and protect the rights of an assignee of a chose in action. ( 3 Johns. Rep. 425 . 4 Term Rep. 690. 16 Johns. Rep. 51 .)

Mitchell, in reply,

said that, for aught that appeared, chases in action were not assignable in Vermont. The fact should have been averred in the replication. It does not appear that the assignment was, in fact, before the suit was commenced in Vermont. Notice of the proceedings to A. L. may be inferred; for the replication avers, that the parties lived in Vermont, and the plaintiff litigated the very point there ; and the assignees were on the spot. A constructive notice is sufficient. But a notice to A. ⅜ L. was not necessary to bind them by the proceedings in Vermont, ( 5 Johns. Rep. 103 .) especially as the suit is not averred to be brought for their benefit.

delivered the opinion of the court. The plea, in this case, would be above all exception, had it averred, that Abel and Lord had been brought before the court in Vermont to contest the point of the assignment to them. The defendant, to be sure, was not bound to aver that fact, because it had not been set up until the replication was put in, that Abel f Lord were assignees of the present cause of action, prior to the proceedings against the defendant, as the trustee of the plaintiff. The plea then is good ; it appearing that the

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court, in Vermont had jurisdiction of the cause, and that the persons of the parties were before them.

The replication is objected to on several grounds; 1st. That the plaintiff is estopped to draw in question any point decided in Vermont, that court having jurisdiction, and all the parties being citizens of, and domiciled in, that state; *2d. Because it is not averred in the replication, that this suit is prosecuted for the benefit of Abel & Lord; 3d. Because Frescott’s appearance in Vermont was, in effect, the appearance of Abel & Lord; 4th. Because there is no consideration for the assignment, nor is it stated to be under seal.

The first objection cannot be sustained, if it be considered that a court of law in Vermont would recognize and protect the rights of an assignee of a chose in action. On this point, we have no direct proof, but I think it cannot well be doubted, that the courts of that state will notice and protect the equitable rights of an assignee. It is understood, that those courts possess equitable and legal powers, and it would be repugnant to all notions of a well regulated system of jurisprudence, to suppose that courts, possessing both jurisdictions, would refuse its aid to the assignee of a chose in action. If we are to consider this suit as prosecuted for the benefit of Abel ⅜ Lord, it is not drawing in question any point decided in Vermont, to say, they are not concluded by the proceedings set forth in the plea; because, it is res inter alios acta. Their rights were never brought into the view of that court, and were never decided upon. The plea does not pretend that they were before that court; and it is not a little remarkable, that although it is stated that an interrogatory was put to the defendant calculated to bring out the fact, whether the defendant had notice of the transfer and assignment of the present cause of action to Abel ⅜* Lord, before the commencement of the suit by the ¿¡afford Company against him, the answer is not stated ; and if lhe defendant suppressed the fact, or answered falsely as to the notice, so that the court had no knowledge of the assignment, and therefore took no measures to bring Abel & Lord before them, he cannot now make the objection, that it is res judicata, for the proceeding would be fraudulent on the part of the defendant. The same answer applies to the plaintiff; if he concealed the fact, which justice required should be made known, he also acted fraudulently; but there is no foundation for saying that the plaintiff represented Abel Sf Lord in the suit in Vermont.

#The second and fourth exceptions may be considered together, and I cannot help considering them fatal. It ought to have been averred in the replication, that this debt had been assigned for a full and valuable consideration, and that the suit was now prosecuting for the benefit of the assignees. In Andrews v. Beecher, ( 1 Johns. Cas. 411 .) the reporter does not profess to give a full report; in the note, it is stated, that

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nothing but a short note of the case could be obtained. We cannot regard the brief statement of the case as at al! evidence of what the pleadings were. In Littlefield v. Storey, Johns. Rep. 425.) the replication was, that before the commencement of the suit, he sold and assigned over the obligations to Z. R. Shepherd, to have and receive the money due thereon to his own use, of which the defendant had notice; averring, that the action was commenced for the sole benefit and use of the assignee, to enable him to collect and receive the moneys due. It does not appear, that any objection was made to the form of the replication ; but there is an evident distinction between the cases. Here, the Safford Company had an interest in this debt, unless it had been assigned bona fide, and for a full consideration. In the case of Winch v, Keeley, (1 Term Rep. 619.) the consideration for the assignment is not fully stated; but there is the same averment as in the last case, that the suit was for the sole benefit of the assignee. And in Perkins v. Parker, ( 1 Mass. Rep. 117 .) which is a case very analogous to the present, where the assignment of the chose in action was alleged to be for value received, all the judges held, that the replication was defective in not stating that the assignment was made upon a good and adequate consideration, setting forth the nature and amount; and some of the judges held, that it ought to be under seal.

I do not consider the want of a seal essential; the mere delivery of the chose in action upon a good and valid consideration, would be sufficient, even were it a specialty. It ought, however, to be alleged, that the assignment was for a full and valuable consideration, and that it is a subsisting assignment, by an averment, that the suit is prosecuted for the benefit of the assignee.

*The defendant must have judgment, with leave to the plaintiff to amend, on payment of costs.

Judgment for defendant.

Cases cited

Andrews v. Beecker 1 Johns. Cas. 411 N.Y. Sup. Ct. p. 231