Bishop v. Holcomb

| Conn. | Jun 15, 1835

Church, J.

The motion presents this case. The defendant was indebted to Hine, the absconding debtor, by note of one hundred and thirty dollars, which was not negotiable, and which was unpaid, when the original process of foreign attachment was served. Before the service of the original writ, however, Hine had, for a valuable consideration, sold and assigned the note in question to Buckingham, to whom, or to whose representatives, it has ever since belonged. Buckingham had given no notice of this assignment to the present defendant, the maker of the note; yet the plaintiffs had notice of it before they attempted to attach this debt, by process of foreign attachment. This controversy is between the plaintiffs, the attaching creditors, and the representatives of Buckingham, the as-signee of the note, although Holcomb, the maker of the note, is nominally, as defendant, a party to the dispute.

It is important to notice, that there is no claim of fraud in the assignment of the note by Hine to Buckingham.

It must be admitted, we think, in conformity with the principles heretofore recognized in this state, and established in England as settled law, in order to perfect an assignment of a chose in action, at least as against bo7iafide creditors and purchasers, that notice of such assignment must be given to the-debtor within reasonable time. Until such notice is given, the debt remains in the order and disposition of the assignor ; and third persons, who may become interested in it, have no means of becoming informed of its state and situation. The want of the precaution of giving such reasonable notice is a neglect, on the part of the assignee, which will postpone his claims to all the rights and equities of the debtor himself, and to the subsequently acquired bona fide rights of creditors and purchasers. And the same principle is the governing one in the frequent and well known cases of the neglect of a grantee to record his deed within reasonable time. 1 Sw. Dig. 437. Tudor & al. v. Perkins, 3 Day, 364. Judah v. Judd, 5 Day, 534. Ryall v. Rolle, 1 Atk. 177. Williams v. Tharp, 2 Simons, 257. 568. Dearle v. Hall and Loveridge v. Cooper, 3 Russ. 1. 1 Chitt. Gen. Pr. 106. 107. 108.

But though such is the general principle, the facts disclosed in this case, show, that the plaintiffs cannot avail themselves of it. Other and equally well known principles exclude the plaintiffs from deriving any advantage from the neglect of the as-signee to give notice to the debtor of the assignment of the note. No person is entitled to take advantage of such neglect, who does not come in a bona fide character : he only who is presumed to have been misled, by the neglect, can take advantage of it. An assignment of a chose in action, as well as an unrecorded deed, is good between the parties to it, if notice has not been given to the debtor; and such assignment gives an equitable interest to the assignee, which will be protected against all but such as have superior equities. The plaintiffs’ knowledge of the assignment and of Buckingham's claim upon the note, destroys their pretensions as bona fide claimants: they come in a mala fide character to defeat rights, which they knew existed in another. The neglect to give notice to the debtor has not misled them ; what the debtor did not know, they knew; and their conduct in attaching this debt has not been in good faith, and presents no claims or equities, which can destroy the effect of the assignment, as it existed between the parties to it. 1 Sw. Dig. 127. Jackson v. Burgott, 10 Johns. Rep. 457. 4 Kent's Com. 448.

We are of opinion, therefore, that a new trial ought not to be granted.

In this opinion the other Judges concurred.

New trial not to be granted.