Allen v. Randolph

4 Johns. Ch. 693 | New York Court of Chancery | 1820

The Chancellor.

The first objection to the plea is, that Skidmore,-the assignee of R. & D. K. Allen, had no, authority to compromise or compound with the defendants Randolph &r Savage, as to the demand assigned to him. I do not perceive the force of this objection. Skidmore was not a mere agent to collect the debt of the Allens. The bill states that they did, by an assignment delivered to Skid-more, “ assign and make over to him their debt or demand in the bill stated, against R. fy S., and the proceeds of the goods delivered.” This deed or writing passed their right and interest as creditors of R. S.; and the debtors had a right to treat with Skidmore, and deal with' him as the real owner. The trusts raised by the assignment applied to the debt or proceeds which should come into his hands, and R. &/• S. had no concern with those trusts. They could not safely deal with any other person than the assignee of the demand ; any settlement they might make with him, if made in good faith, and not by fraud or collusion with him, was valid and binding. The release or discharge given by the assignee, upon the settlement, was one that he was competent to give, and they to receive. It discharged them from “ all demands in law and equity by means of the assignment.” It was, therefore, co-extensive with the debt and demand which passed by the assignment.

The only real difficulty in this case is, that there is no general averment in the plea denying the charges in the bill, which, if true, would avoid the plea. The bill charges that the release was procured by misrepresentation, coercion, and fraud, and though this charge is denied in the answer accompanying the plea, there is not even a general averment to that effect in the plea. The release is pleaded nakedly, as was the award in the two Exchequer cases of Pope v. Bish and Edmundson v. Heartly. (1 Anst. 59. 97.) But in the latter of those cases, the Court said, they did not mean to extend the authority of them beyond the case of awards. In Lloyd v. Smith, (1 Anst. 258.) afterwards, in the same Court, such a naked plea of a release charged by the bill to have been procured by fraud, was not allowed, in the first instance, but reserved to the hearing. In Bayley v. Adams, (6 Vesey, 586.) the authority of those cases was very much shaken ; and it seemed to be considered by Lord Eldon as the better rule, that the charges in the bill must be met by way of general averment in the plea, as well as particularly in the answer. The rule is so laid down in Milf. Tr. 216.; and the decision in Davie v. Chester, in Chancery, in 1780, is referred to, as containing a deci sion directly to the point. The sense of the rule is, that a plea must be perfect in itself, so that, if true in point of fact, there may be an end of the cause. But if the circumstances of fraud under which the release is charged to have been procured, be not denied in the plea, it may be true that such a release was given, and yet this may be of no effect.

I shall, therefore, as was done in the Exchequer cases, and as Lord Eldon consented to in Bayley v. Adams, allow the defendant to amend his plea; the amendment to be by inserting a general averment or denial of the facts charged in the bill, which go to show that the release was fraudulently or improperly procured. The amendment to be made in three weeks after service of a copy of this rule, and a Copy served gratis on the solicitor for the plaintiff •, and in default thereof, the plea to be deemed overruled, and with liberty to the plaintiffs to except to the answer of the defendant, Randolph, the survivor of R. & S.

As the cause was brought to a hearing, not only on the defect in the plea, but on the merits of the defence touching the competency of Skidmore to execute a release, I shall not grant costs upon this order, but reserve the question of costs to the conclusion of the cause..

Decree accordingly.

END OF THE CASES.