Lamkin v. Phillips, 9 Port. 98

Lamkin v. Phillips

9 Port. 98 | Ala. | 1839

GOLDTHWA1TE, J.

The judgment of the Circuit court was probably induced, by an impression, that the debt due from the defendant, to Crocheron & Clark, was incapable of being assigned to either one of the partners — and that, therefore, it was not extinguished, when he settled with, and gave his note to the administrator of Clark.

The judgment cannot be supported; because, by the assignment to Clark, he acquired the sole equitable interest in the account: this, at his death, became vested in his administrator, who was authorised to collect the money, and thus extinguish the debt; or to take a security, payable to himself, and thus vest the legal, as well *102as the equitable interest in him, for the benefit of those interested in the estate of his intestate. Courts of law have, for a long period, taken notice of the assignment of choses in action, and have afforded them every protection, not inconsistent with the principles and proceedings of tribunals, acting according to the course of the common law. They endeavor, in these respects, to apply, as far as may properly be done, the rules and doctrines recognised in courts of Equity. — Welsh vs. Mandeville — (1 Wheat. 233;) Andrews vs. Beecker — (1 Johns. Cases, 411;) M’Collum vs. Coxe — (1 Dall. 139;) Raymond vs. Squire — (11 Johns. 47;) Wheeler vs. Wheeler — (9 Cowen, 34.)

It is true, that no action at law, could have been brought, either in the name of Clark, or of his administrator, for the account, but the entire equitable interest, passed by the assignment; and he, in his life-time, was authorised to use the name of the firm, for its collection; and his administrator, in like manner, was entitled to sue in the name of the surviving partner, for the benefit of his intestate’s estate, on giving an indemnity for cost, if required. Suit on the account, was unnecessary, as the defendant gave his note to the administrator; and thus extinguished, in November, eighteen hundred and thirty-six, the debt before due to the firm.

When the defendant was subsequently garnisheed, in May, .eighteen hundred and thirty-seven,, as a debtor of Cocheron, the surviving partner, he was in no wise indebted to him, and was authorised, from the facts, so to answer. If, however, he answered otherwise; or, if a liability was fixed on him, independent of his answer, *103the plaintiff to this action ought not to be prejudiced, by an erroneous judgment, given in a cause, to which he was neither party or privy.

In the case of Colvin vs. Rich — (3 Porter, 175,) this court determined, that the maker of a note, who wad summoned as a garnishee of the payee, and who received notice of the assignment, before answer, was not protected, in a suit against him, (by the assignee,) by the payment of a judgment, rendered against him, as such garnishee. The garnishee, in that case, stated the fact of assignment and notice — consequently the judgment against him was irregular, and ought to have been contested. So, in the present case, if the defendant to the action truly stated the facts, no judgment ought to have been rendered against him, as a debtor of Crocheron, the surviving partner: and he could have successfully resisted the same, by writ of error. On the other hand, if he omitted to state the circumstances attending the extinguishment of the account, by reason of giving his note to the administrator of Clark, the fault was his own, and he would be entitled to no relief against the plaintiff.

Let the judgment be reversed, and the cause remanded.