Jackson v. Losee — 4 Sarat. Ch. Sent. 381

Majority

p. 381

Jackson v. Losee.

Nov. 9 ;

Dec. 2, 1846.

Headnote

A claim, is a challenge by a man of the property or ownership of a thing which is wrongfully detained from him.

The right to recover against the plaintiff in a replevin suit, the value of the property which has been delivered to him on the writ of replevin, together with damages for its seizure, is a claim against such plaintiff, and will pass under a general assignment made of all dues and claims, by the defendant in such suit.

The complainant’s right to a thing in action, being established by the decree in a suit, the court .will on petition, enforce it against one to whom the defendant has assigned such thing in action, pendente lite.

On the 25th of January, 1845, William A. Jackson, of the firm of Jackson & Losee, sold to the complainant, and for and in the name of the firm, executed to him an assignment of all dues and claims they then had outstanding, or that might be, or become due to, or be claimed by them ; in consideration of the complainant’s advances of money, to and for them. On the 6th of March, 1845, W. A. Jackson having died in the meantime, the complainant filed the bill in this cause against Losee, to enforce the assignment, and obtain the effects thereby transferred ; and obtained an injunction, restraining Losee from disposing of, or meddling with such effects.

Losee appeared by Lawton & Henry, Esq’rs, his solicitors, and

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put in an answer. Proofs were taken, and a final decree made by the assistant vice-chancellor, on the 28th day of September, 1846. By this decree, it was amongst other things, adjudged that the assignment to the complainant was valid and binding) against Losee, as well as W. A. Jackson ; and that, all the dues and claims belonging to their firm, were thereby transferred to the complainant.

It appeared by a petition now presented in behalf of the latter? that on the 15th day of January, 1845, he commenced an action of replevin against Jackson & Losee, in the Superior Court of the city of New York, and thereupon seized a quantity of hams, which he claimed had been bought with his money, were in J. & L.’s possession, and L. refused to deliver to him. The hams were forthwith delivered by the sheriff to the complainant, who sold them. On the trial in the Superior Court, in December, 1845, a verdict was rendered in that suit in favor of Losee, the surviving partner, and the value of the goods taken with interest, was assessed at #1107 58. The complainant alleged that the verdict was obtained by fraud and perjury, and on that ground, and on a case made, he prepared to move for a new trial.

The petition also stated that Losee, in defiance of the injunction, had collected many of the assigned demands, and that the complainant would lose at least #15,000, by means of his advances, intended to be secured by the assignment; and it prayed that Losee and his attorneys, &c., might be perpetually restrained from proceeding further in the action of replevin, and from instituting any new proceeding for the recovery of the property replevied on its proceeds.

In opposition to the petition, one Paschal Graves appeared, and claimed that the verdict and demand in the replevin suit belonged to him, by virtue of an assignment, executed to him by Losee on the 27th day of February, 1846, in trust to pay Messrs. Lawton & Henry, their charges as solicitor and attorney for Losee, and to his counsel the charges he might have ; and in the next place to pay two other creditors of Losee. It was shown that all these creditors had no other security for their debts ; and-it was contended that the verdict and the right

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upon which it arose, did not pass to the complainant by the assignment of January 25th, 1845.

E. Sandford, for the petition.

E. Clark and A. L. Jordan, for P. Graves.

Chief Justice Dyer, as long ago as the 11th Elizabeth, defined a claim, to be a challenge by a man of the property or ownership of a thing which he has not in possession, but which is wrongfully detained from him. (Stowel v. Lord Zouch, 1 Plowd. Comm. 359.)

Tested by this definition, which has been recognized and approved as sound to this day, the right which the firm of Jackson & Losee had on the 25th of January, 1845, to recover against the complainant the property which he had replevied, or to recover the value of such property, and damages by reason of its seizure, was a claim against the complainant.

The decree made in this suit, establishes the position that all claims which Jackson & Losee had outstanding, on the 25th of January, 1845, were on that day assigned and transferred to the complainant.

The decree is. conclusive, not only upon Losee, but upon all persons who have, during the pendency of the suit, derived from him any title or interest in the claims thus transferred.

In this instance, the right was a pure thing in action, in which no one could acquire an interest as a purchaser in good faith without notice, so as to interfere with the force of the lis pendens. And aside from that circumstance, the transfer set up by Mr. Graves, is made to secure precedent debts ; the first in order being to Losee’s solicitors in this suit, and to his counsel.

I have no doubt, therefore, that the claim in the replevin suit, belongs to the complainant, in preference to Graves, and those for whom he acts; and the former is entitled to an order restraining the latter from further proceeding in the replevin suit, or instituting any other suit for the recovery of such claim.