13 N.H. 23 | Superior Court of New Hampshire | 1842
There is no principle better settled than that the law will protect an assignee’s equitable interest in a chose in action where the assignment is bona fide and for a valuable consideration against all persons having notice of the trust or assignment. 12 Johns. 343, Anderson vs. Van Allen; 19 Johns. 95, Briggs vs. Dorr; 3 Johns. 425, Littlefield vs. Story ; 1 Greenl. 266. Henry vs. Milham ; 13 Mass. 304, Perkins vs. Parker; 8 Mass. 446, Boylston vs. Greene.
]a such case, the chose in action is not assigned so that the assignee may maintain a suit in his own name, but the assignee has an equitable right, enforceable at law in the name of the assignor. Thus, a book account for goods sold; an unliquidated balance of accounts ; a contingent debt; a decree in chancery; a judgment and execution recovered at law, or the interest in a bond after forfeiture, may be assigned, so as to vest an equitable interest in the assignee, which the law will protect. 4 Mass. 511, Dix vs. Cobb ; 3 Day 364, Woodbridge vs. Perkins; 10 Mass. 316, Crocker vs. Whitney; 1 Brock. 552, Coates vs. Muse; 15 Mass. 481, Dunn vs. Snell; 4 Pick. 1, Ensign vs. Kellogg.
The delivery of a note, bill, or execution, with intent to transfer the debt, on a fair bargain upon a valuable consideration, is a sufficient assignment of the note, bill, or judgment. 13 Mass. 304, Jones vs. Witter; 5 Greenl. 282, Titcomb vs. Thomas; 2 Greenl. 147, Clark vs. Rogers. In such case, the assignment cannot be defeated by the assignor, or by any collusion betwixt him and the debtor. The assignor cannot discontinue any action brought in his name, where the interest in the claim has been assigned; nor can the debtor, after notice to him of the assignment, liquidate, discharge, or release the demand by any agreement with the assignor; or, if after notice he is summoned as trustee, so disclose as to defeat the interest of the assignee. He is bound to disclose his knowledge of the assignment, and cause the proper evidence of the same, if necessary, to be affixed to his disclosure, in order to protect himself. 13 Mass. 307, Jones vs. Witter;
Where the assignor of a judgment entered up satisfaction upon the record, after notice had been given to the defendant of the assignment, the court ordered the entry of satisfaction to be vacated. 2 Johns. Ca. 261, Wardell vs. Eden; and where a judgment was assigned, with the knowledge of the sheriff, to whom the execution was delivered, and the debtor escaped, on arrest it was holden that the sheriff could not defeat an action for escape on such arrest, by taking a release from the nominal plaintiff. 15 Johns. 405, Martin vs. Hawkes.
While the court are thus liberal in permitting assignments, and in protecting the equitable interests of the assignee, they should adopt an equally liberal rule as to the mode of notice of such assignments.
Any evidence of an assignment which would be ordinarily sufficient to show a transfer of property, — as, from a witness present at the same ; or, notice by the assignee, of the assignment, with the exhibition of the instrument or claim assigned, will constitute notice of an assignment.
It is even holden that special notice is unnecessary, and that it is enough if the party has such knowledge of facts and circumstances as is sufficient to put him upon enquiry. 12 Johns. 343, Anderson vs. Van Allen; 14 Serg. Rawle, 137. In 8 Greenl. 17, Davenport vs. Woodbridge, it was holden that if the assignee gives the debtor notice, without exhibiting the security or offering other evidence, it is sufficient.
In this case, the attorney having the custody of the demand, and authority to enforce its collection, instructed the officer, serving the process, both on the' writ and by letter, to notify the debtor of the assignment of the demand to Sil
It is contended, however, that such notice of assignment is designed merely to protect the assignee from any collusion betwixt the debtor and payee, by which the suit may be defeated, or the claim released; and that where the debtor is arrested, notice given, without such collusion, to the plaintiff on the record, of an intention to take the poor debtor’s oath, is sufficient. But this construction of the obligation to the assignee is too limited. If the interest of the assignee is to be protected, it should be protected as to all measures tending to effect a discharge of the claim, whether through the operation of law on taking the poor debtor’s oath, or by any other mode.
The new relation which the law creates betwixt the debtor and assignee, obliges the debtor to regard the rights of the assignee in these respects. The debtor cannot discharge himself except on notice to the creditor; and who is to be regarded as the creditor ? Manifestly the person whom the law recognizes as having the lega.1 interest in the claim,. It is fraudulent to attempt to enforce a discharge where notice is necessary, without giving such notice to the party interested. If it is necessary to protect the interest of the assignee at all, it should be protected in proceedings of this nature, and the notice should be given by the debtor to the party known by him to have the true interest in the claim.
It may be said that the debtor will be subjected to doubt and inconvenience as to what course to pursue in certain cases, and might be compelled sometimes, as a matter of caution, to give a duplicate notice. It is believed, however, that but little difficulty will arise from this cause, and that cases would rarely occur in which the party would be at a loss as to what constituted a legal notice of assignment.
Judgment for the plaintiff.
