13 W. Va. 718 | W. Va. | 1878
delivered the opinion of the Court:
Did L. M. Wolcott, a member of the firm, assign to W.m C. Williams the claim set up in the petition ? From the evidence in this case there can be no doubt, that for a valuable consideration he did assign the identical claim, that was afterwards, or perhaps before, sued upon by Brown & Summers, on which they, in the name of Wolcott & Everett, recovered judgment, and which identical judgment was afterwards,
The assignment was properly made by the transfer of the attorney’s receipt. Judge Carr, in Elam v. Keen, 4 Leigh 333, speaking of the transfer of a bond by gift, said: “The bond itself could not be delivered, it was in court in the custody of the law. The receipt was its representative. We must presume, it described the bond accurately, and stated, it was received to be put in suit, and that when collected, the attorney would account for it, as in the case of the key, the delivery of this receipt ‘was the true and effectual way of obtaining the use of the subject.’ Speaking from my own experience, I should say, an attorney requires no better order for the payment of money, he has collected on a bond, than the receipt he has given for the bond; when he takes this in, with a receipt upon it for the money, he feels safe.” But in this case not only was the attorney’s receipt passed over to the assignee, but in the very words of the agreement, the “claim,” represented by the receipt, was transferred. That it was the property of the firm is apparent from the letter of the firm, written on the 29th day of May, 1861, in which they say, “we once had it in possession, but sold it, without any recourse upon us,” thus ratifying the assignment, made more than three years before, and refusing to pay clerk’s fees in the suit upon the claim.
It follows therefore, that Clarke had a right, in the name of the said Wolcott & Everett, to recover judgment against the debtors, and to pursue all his remedies, for the collection of the claim, in the name of the said firm. Billy Jones v. Witter, 13 Mass. 304. But it is said, that Clarke did not do it; that it was done by others. By whomsoever done, it enured to the benefit of the as-signee.
It is also said, that'Clarke, the assignee, is the same man, who endorsed the draft, and that he was named in the declaration and summons; and the intimation is made in the argument, though not very distinctly, that for that reason he could not be an assignee of the claim. A sufficient answer is, that Clarke was not the original debtor, and could therefore be an assignee of the claim ; and the fact, that he was named in the declaration and summons, cannot prejudice his right; no judgment was recovered against him, and even if there had been, as he was not the real debtor, but only collaterally bound, his right under the assignment would not thereby have been destroyed. As to the $94.00, paid to Iiogeman, the re'eord shows by the return on the execution, that this sum was collected by a sale of bank stock of the judgment debtor, Allen M. Smith, under an execution on the- judgment, and was paid to Laidley & Hogeman, the attorneys for the plaintiffs, Wolcott & Everett, on the 15th day of April
For the foregoing reasons, the decree, rendered in this cause on the 1st day of December, 1876, is reversed, ivith costs to the appellant, Win. S. Clarke against the appel-lee, W. H. Hogemau; and this court proceeding to render such decree, as the circuit court should have rendered, it is adjudged and ordered, that the petitioner, Wm. S. Clarke, by virtue of the assignment of Woleott & Everett to him of the claim against Clarkson, and Nock and Smith, upon which judgments were recovered against the said parties, and subsequently another judgment against the said parties and W. A. McMullan on a forthcoming bond, is entitled to be substituted to all the rights of said "Wol-cott & Everett to said claim, and said judgments, and to the lien in their favor, reported by Abram Burlew, as set out in the petition; and that, said petitioner, W. S. Clarke, recover against the said W. H. Hogeman, his costs about the prosecution of his suit upon said petition expended; and this cause is remanded to the circuit court of Ivanawlia county, to be further proceeded in, according to the principles, herein declared, and further according to the rules governing courts of equity.
DECREE KeVERSED, CAUSE REMANDED.