Blin v. Pierce

20 Vt. 25 | Vt. | 1847

The opinion of the court was delivered by

Bennett, J.

We see no objection to the jurisdiction of the county court. Though the principal of the plaintiff’s account was less than one hundred dollars, yet the interest, which was demanda-ble, and which the plaintiff charged and claimed before the auditor, raised the claim above that sum. The plaintiff might probably have brought his action before a justice of the peace by waiving his claim for interest; but he was not bound so to do. The right to charge H^gim^iricident to the account and constituted a proper item

state of facts it has been frequently held, that the individual, who made the contract, may be sued alone.

It is claimed, that the right of action passed to the assignee of Blin under the proceedings in bankruptcy; and this probably is the principal question in the case. The plaintiff was indebted to Has-well, in a sum larger than the claim now sued for, and gave him an order upon the present defendant for the full amount of this account, which Haswell was to collect and apply upon his account against the. plaintiff. Haswell immediately gave notice to the defendant, that he had such order, and requested payment, — though the defendant neither accepted nor paid the order. The claim now sued for was neither included in the list of the property of the bankrupt, nor claimed by Haswell as his assignee in bankruptcy. The report finds, that Blin acted in good faith, and without any design to defraud his general creditors in bankruptcy by giving a fraudulent preference to Haswell. Upon this question, then, we are to assume the facts to be as reported by the auditor.

It is .doubtless true, that if a draft, or order, is drawn on a debtor, for funds of the drawer in his hands, such a draft does not, at law, transfer the fund and enable the holder to maintain an action against the drawee, unless the latter accept the draft. But in equity we think it would merit a different consideration. It would, in equity, amount to an assignment of the debt, and would be enforced, although the debtor had not assented thereto; and it has long been ¡ settled by the courts in this state, as well as by most other judicial ') tribunals, that, after such an assignment of a chose in action, the assignor shall not be allowed to defeat the rights of the assignee; and it makes no difference, in this respect, whether the assignment be good at law, or only in equity.

The position, that there was a valid assignment to Haswell, in equity, of the plaintiff’s debt against the defendant, is sustained by many adjudged cases. Mandeville v. Welch, 5 Wheat. 277, 286. Tiernan v. Jackson, 5 Pet. R. 598. 2 Story’s Eq. 308, § 1044, and cases there cited. It is a sufficient consideration for the assignment, that it was to secure a debt due from the assignor to the as-signee. Ex parte Byas, 1 Atk. 124.

The plaintiff’s account, then, having, in equity, been assigned to Haswell prior to the bankruptcy, the question is, did this demand pass to the assignee in bankruptcy upon the plaintiff’s being declared a bankrupt ? The statute is indeed broad, declaring that “ all the property and rights of property of the bankrupt, of every name and nature, whether real, personal, or mixed, shall pass by operation of law to the assignee.” In equity, and for all beneficial purposes, Haswell was the owner of this claim, when the present plaintiff went into bankruptcy, the plaintiff holding the legal interest in trust for him. Under the English statute of bankruptcy it was held, in the case of Winch v. Keeley, 1 T. R. 623, that a debt due to the bankrupt as trustee did not pass by the assignment. So-in Ex parte Smith, 3 Swans. 392, where the bankrupt, before the bankruptcy, gave to a creditor an order upon the executor of his debtor to pay the debt to the creditor, and the executor received the order and detained it until he had received sufficient assets, it was held, that the creditor was entitled to recover the debt. And see Bedford v. Perkins, 3 C. & P. 90, [14 E. C. L. 219.] I am not aware, that our statute should, in this particular, receive a different construction from what has been given to the English statute. It is common for courts to somewhat restrict the general words of a statute, and confine its operation to cases coming within its equity. We do not think it was the intention of Congress to extend the operation of the statute to a demand situated as this was.

When the plaintiff had p'aid the debt to Haswell and taken back this demand, he then again became possessed of the equitable as well as the legal interest in it.

The result is, the judgment of the county court must be affirmed.