Imágenes de páginas
PDF
EPUB

Сн 24. Art. 2.

3 M. R. 558, Wakefield v. Martin.

3 Salk. 120.

9 M. R. 337.

Vatt. lib. 3,

ch. 5. s. 77.

3 Bos. &. P.

38.-1 Rob. R. 200, case

court held that Hudson was not trustee to Read, because in justice and equity, the debt was Cobb's property, by virtue of the assignment. This decision was in a court of law.

§ 11. In this case the court decided that the assignment of a policy of insurance vests an equitable interest in the assignee, without notice to the underwriter. Before notice to him, this interest is in the assignee, and notice to the insurer is, that he may have no excuse for paying the assured.

12. Where a chose in action is created by deed, as a bond &c. the destruction of the deed is the destruction of the duty itself.

§ 13. See when the assignment of a chose in action is not defeated by the death of the assignor, and several points as to the assignments of a chose; Dawes, Judge, v. Boylston, Ch. 14, a. 3, Assignments.

14. Debts due from foreign nations, are not in modern practice, usually confiscated, but payment is suspended 191.-Beawes during a war between the debtor nation and the creditor's. But Vattel thinks the debtor nation, in such case, has a right of the Hoop. to confiscate, and so the debts its subjects owe to their enemies, -1 Rob. R. at least forbid payment during the war. England and the United 196.-13 Ves. jr. 71. States adopt the latter course. Such creditors cannot sue during the war; and on the ground, above stated, no alien enemy can sue. And in case of the debtor's bankruptcy, it may be proved, though not paid during the war. But this doctrine of suspension only, does not apply to a contract made with an enomy during a war; for such contract is void, except in some very special cases. According to a case in Parker's R. 207, the old law was confiscation, even of debts contracted in a time of peace but this doctrine has been discontinued in modern times. 3 Bos. & P. 191, 200, Furtado v. Rogers: but such debts are more properly considered as a part of a political system.

15. Bond, assigned in New-Jersey. The assignee of a bond cannot sue the assignor on failure of the obligor to pay it. Pennington 20, Garretts & al. v. Van Ness, id. 211. in the case of a sealed bill. Penning. 158, Harris, admr. v. Clark.

So

16. By the statute in New-Jersey, enabling the assignee of a bond to sue in his own name, bonds are put on the same footing with personal property in possession; and the buying and selling them must be governed by the same law. Penning. 158. In equity on the sale of a chose in action, or of a right in equity, it is a good rule to give notice to the debtor and trustee this binds him. Tourville v. Naish, 3 P. W. 307; Davies v. Bustin, 1 Vesey jr. 247, 249; 2 P. W. 495; 15 Ves. jr. 354; 2 Taun. 413. Such notice may give a

[ocr errors]

preference to a second, over a first endorsee, who does not give it. Stanhope v. Verney, Co. Lit. 290; and 9 Vesey jr. 410. If B buy a chose in action or equitable title of A, B must abide by A's case, and will be entitled to his remedies. Whitfield v. Fausset, 1 Vesey 387; Turton v. Benson, 2 Vern. 764; 7 Vesey jr. 245; Priddy v. Rose, 2 Mer. 86; 1 Dallas 28; 1 Yeates 23; Murray v. Sylburn, 2 Johns. Ch. R. 443; Norton v. Rose, 2 Wash. 233; Porter v. Blackenridge, Hardin 24; 17 Vesey jr. 485; 3 Atk. 238. But if a chose in action or a right &c. be subject to any lien &c., and the purchaser or assignee knows it, equity will not aid him. though he pay a full consideration. Murray v. Finch, 2 Johns. Ch. R. 157. He is in the shoes of the seller, Jackson's case, Lane 60; Taylor v. Stibberts, 2 Vesey jr. 437; 1 Yeates 291; 2 Bin. 455; 2 Munford, 527.

ART. 3. Further cases in the United States. The law will protect the equitable interest of the assignee of a chose in action; but the assignment must be for an adequate consideration, and so appear by the pleadings. And a quære is added if such assignment must not be by deed, even though the thing assigned is evidenced by writing only. It is difficult to discern whence this doubt arose.

1. Also see Ridden, admr. v. Shute, admr., the case of a debt in the probate office sold, Ch. 2, a. 8.

CH. 24.

Art. 3.

Mass. R.

117, Perkins

v. Parker.

10 Mass. R.

§ 2. A seaman's future wages assignable by parol &c. 316, Crocker Isaac Head, a seaman in the ship Favourite, bound on a voyage & ux. v. to India and back, owed the plt's. wife, while sole, $188,85, Whitney. on a promissory note. The deft. Whitney, was supercargo on the same voyage, and at Head's request, by a memorandum on the note, signed by the deft., promised her to pay said sum, "if Head should have so much on board said ship on his return to Nantucket ;" which meant, as the plt. averred, if there should be so much due to the said Head from said ship. She returned, and the plt. averred there was as much due &c. Verdict for the plt.-judgment on the verdict. The principle settled in this case was this: that Head, for a valuable consideration, and existing debt to Mrs. Crocker, assigned to her, and this he might by parol, his wages due, and to be due to him in the voyage, and the deft. having notice of this, there was imposed "on him an equitable and moral obligation to pay the money" to her, the assignee, and this was a good consideration for the deft's. said express promise. No objection the assignment was of an unliquidated balance of account. If the deft. promised to pay what should be found to be due from him, he became liable for the amount when ascertained. Nor any objection it was of monies to become due in future. The form of the deft's. promise and the verdict, were relied on

CH. 24.
Art. 3.

1 Cranch 423.

2 Cranch 342, Winchester v. Hackley.

6 Cranch 82, Lewis v. Harwood.

6 Cranch 204, Stewart v. Anderson, in

error.

Toller's L. of
Ex. 157 &c.

-Off. Ex. 65.

59.

:

as proving the deft. was indebted to Head for his wages &c. though this fact of his being so indebted was not alleged in the plt's. declaration. The court held the deft's. promise was merely limited, as to its extent, and not a condition precedent to the performance of it. "It is not a promise to pay the plt's. debt, on condition only of his having enough in his hands to pay the whole but a promise to pay to the extent of what he may have in his hands." There arises on this case but one doubt, if any; and that is, how the court could presume the jury found a very material fact to be true, to wit: the deft's. being indebted to Head, when this fact was not alleged in the plt's. declaration. That only averred so much due to Head from the ship. The general rule being, the proof must be ac-cording to the allegations, and the verdict according to the proof.

3. Cases in the federal courts. The meaning of the rules a chose in action is not assignable.

A had an open account with B, and assigned it to C, with
B's assent. A may still sue the account in his name against
B for C's use; but B may off-set his claims against C.
168, a. 6, s. 8.

Ch.

4. A bond sued, breaches assigned, and a jury to assess damages, is not assignable as a chose in action, on the statute of Virginia the debt is too uncertain. Only a money debt is assignable by the act of 1748.

:

5. In Virginia, the assignee of a negotiable note sued the maker. Held, he might set-off such note as he held against the assignor at the time he had notice of the assignment of such chose in action; though the note to said maker, was not due at the time of the notice, but became due before the note sued. The act of Virginia provides that assignments of bonds, bills, and promissory notes, and other writings obligatory for payment of money or tobacco, shall be valid ; and an assignee of any such, may thereon maintain an action of debt in his own name, but shall allow all just discounts, not only against himself, but against the assignor before notice of the assignment was given to the deft.

Choses in action, how assets &c. in the hands of executors and admrs. : generally, not till recovered. They are entitled -3 Bac. Abr. to all the debts of the deceased, accrued in his life time; as judgments, recognizances, debts due on special contracts, as for rent; or on bonds, covenants, &c. under seal; or on simple contracts, as notes and promises, expressed or implied. So to damages for trespasses on the deceased's goods in his life time, by 4 Ed. 3, c. 7. So for converting them, or for a trespass with cattle in his close, or for cutting his growing corn, a chattel, and carrying it away at the same time; and so to

1 Vent. 187. -Poph. 189.

-8 Bac. Abr.

59.

Cн. 24.

Art. 4.

-Cro. El.

297

-Stra. 212.

damages for every other injury done to the personal estate of the deceased in his life time; so for a breach of a covenant as to personal things, though it sound in the realty, as for not assuring lands, if broken in the testator's lifetime. Com. D. admr. B. 13, and covenant, B. 1. And the damages in all Com. D. these cases, when recovered, are assets. So if a bail bond admr. B. 13. be assigned to A, his executor recovers on it as a vested interest. Com. D. admr. B. 13. So if damages accrue to Com. D. the testator by an escape, or false return, or detainer of mon- admr. B. 13. ey by an officer, his executor recovers them as assets. 1 Salk. 12. So on writs of error or audita querela, the damages come to his executor or admr. as assets. 3 Bac. Abr. 60. So he is entitled to replevin of the deceased's goods. 1 Sid. 82. In all these cases, the action accrues to the deceased in. his lifetime, and the case is the same where it accrues after his death, on a right in him; as if A covenant to lease land to B on a certain day, and he dies before the day, and lease made; A must make it to B's executor, and it vests in him as executor, and is assets, or if A refuse, his covenant is a chose in action, B's executor can enforce: the damages he recovers are assets. Plowd. 286. A deceased plt's. bail bond assigned to his executor is assets, as much as if assigned to the deceased. Fortes. 370. So if his debtor in execution escape after the plt's. death. Com. D. admr. B. 13.

ART. 4. Choses in action, if assignable in their nature. § 1. The general question is what choses in action, or contracts are, in their nature, or on the special terms of them, so assignable, negotiable, or endorsible, as to enable the assignee or endorsee, to sue them in his own name. But the more immediate question is, whether a money note made payable to one, or to his order, is so assignable or endorsible, independent of any statute. It is very important, in every state in the Union, to know what is negotiable paper in each state; because such paper, or contracts, made in each state, very often circulate, and are suable in every state; and there is no subject on which our law is more unsettled; because what contracts are so assignable in their nature, or on general principles, independent of any statute, is yet uncertain; because many of the states have adopted the said statutes of W. 3, and Anne, cited Ch. 20, a. 3, and several have not; and because several states have statutes on this subject, varying more or less from those English statutes, as Virginia &c. Also, in some states, bills, notes, orders, and other contracts, usually made negotiable, as above, are left to rest wholly on the principles of the common law, including the law merchant.

2. The general principle clearly is, that a chose in action, or a right in one to sue another, to recover money or property 63

VOL. I.

CH. 24. in a court of justice, is not assignable, so as to enable the asArt. 4. signee to sue in his own name. The policy of the law for bids such assignments, in order to prevent lawsuits being brought up and multiplied, by men more litigous or better able to carry them on, than those having the original right to sue. But there are three kinds of exceptions to this general rule. 1st. In chancery, or equity courts, and when the king has been a party, as courts of this kind have been viewed as having such a controul over the motives and conduct of the parties, by examining them on oath &c., as to be able to prevent abuses in thus transferring a right to bring suits; and kings in general, suing for the public, as being not likely to practise abuses in such cases. 2d. kind of exceptions are those made by statutes enacted by our legislatures, now so numerous. These statutes are many and variant in their principles and provisions. There have been but few judicial constructions upon them. It is, therefore, at present, in vain to attempt to show how far these statutes make contracts, or choses in action, assignable or not. The 3d kind of exceptions are such as the reason of the law has introduced, to promote and facilitate commerce and money operations; the benefits of which have been considered greater than the evils to be feared in assigning or transferring in such cases, the right to bring actions. A foreign bill of exchange, or as once called, outland, payable to order, has ever been an exception to the general rule, and within this 3d exception. On the other hand, every contract not payable to order, or bearer, has ever been subject to this general rule; not by statute exempted from it. The said English statutes, and some of our state statutes, make inland bills and money notes, payable to order, assignable as foreign bills are. How far such inland bills and money notes were so assignable as to enable the assignee or endorsee to sue in his own name, before said statutes were passed, is the question now to be considered; and a very material question it is, for if before, so assignable, they generally remain so, notwithstanding most of our state statutes on the subject. To form correct ideas on this subject, we must resort to the decisions made before said English acts were passed, especially that of Anne.

3. A chose in action, or contract to pay monies to one, or to his order, before the 9 & 10 W. 3, c. 17. When a contract was so made, it was evident the parties meant it should be negotiable, so as to enable the assignee to sue in his own name. But this intention could not support his action, further English stat than the law sustained it. And it clearly was a question, if the law did sustain such an action on a note &c. Cases. Cases. Six 24, Vanheath v. Turner, 2 Inst. 404.-2 Keb. 155.

utes-Winch.

« AnteriorContinuar »