| N.Y. Sup. Ct. | Oct 15, 1818
delivered the opinion of the court. It is . fully settled, by a long series of decisions, that courts of law will take notice of, and protect, the rights of assignees, against all persons having either express or implied notice of the trust. (Johns. Dig. 40. and the cases there collected.) It is equally well settled, that the assignor of a chose in action, cannot defeat a suit brought in his name, by his assignee, by a release to the defendant, who has notice of the assignment.
If Jordan stands in the situation of an assignee, and if Martin is to be regarded as the mere trustee to Jordan, for the amount of the judgment against Robinson, then, most assuredly, Martin could not, by his release, defraud his cestuy que trust of the money to which he was entitled.
In the case of Pinder v. Morris, (3 Caines’ Rep. 165.) this court recognized the principle, that if the defendant pay to the plaintiff the debt and costs, after notice from the Attorney of the plaintiff not to do so, he pays the costs in his own wrong. We referred to Doug. 238. 4 Term Rep. 123. 6 Term Rep. 361. as establishing that position.
Lord Mansfield held, in the:case of Welsh v. Hole, (Doug. 238.) that an Attorney had a lien on the money recovered by his client, for his costsand that, if the Attorney gave notice to the defendant not to pay, till his bill should be discharged, a payment by the defendant, after such notice, would be in his own wrong, and like paying a debt which has been assigned, after notice.
In the case of Read v. Dupper, (6 Term Rep. 361.) Lord Kenyon said, the principle had been settled long ago, that the party should not run away with the fruits of the cause, without satisfying the legal demands of his Attorney, by whose industry and expense those fruits were obtained. If
It will be observed, that the question now before the court is not whether the lien of the Attorney for his costs is superior to the equity of a defendant, who has a matter of set-off existing against the plaintiff; a different rule has been adopted by this court in such a case.
If the Attorney has a lien on the judgment for his costs, and if he stands in the same equity that he would have done, had . the judgment been assigned to him, then I am at a loss to discover why he should be defrauded of that lien, and devested _ of that equity, when all the parties to this transaction were informed of his lien, and forbidden to do any act which should prejudice it.
The Sheriff, by suffering Robinson to go at large, was inevitably fixed with the debt. (1 Johns. Cas. 411.) He never could retake the prisoner. Being thus fixed, and to avoid his responsibility, he avails himself of what he had been directed not to do. He takes Martin’s discharge of the judgment, knowing that no part of it belonged to him, except six cents, and he shelters himself under the release, which Robinson also obtained fraudulently; for the case states, that he had been notified not to pay Martin. Martin, too, was guilty of a fraud, in discharging the execution, for be well knew that he was entitled to no part of it, except nominal amount of six cents.
Now, it seems to me, that where a discharge has been ihsarj obtained, by fraud in all the parties to it, it canee*: he operative, as respects any of the parties ; and that we d'icoui
It may be objected, that Jordan, the Attorney, is not to be regarded as having a lien on the action for the escape, inasmuch as that is a tort not assignable. His claim to a right to prosecute this action grows out of his lien and equity in the original action; and, therefore, it is no answer to this action to say, that it cannot be assigned. See to what a length that objection will go ; the assignee of a bond, having given notice to the obligee not to pay it, sues on it, and obtains judgment. He takes out a ca. sa., and when he gives it to the sheriff, notifies him that the debt is his, and to pay it to him only. The sheriff arrests the defendant, and permits him to escape ; and then, to avoid his liability, takes a release from the nominal plaintiff. Will this protect him ? If it does, then, indeed, the principle that a court of law will notice and protect the assignee of a chose in action, amounts to nothing.
I hold, that he must be protected throughout, and that it would be just as inequitable to suffer him to be cheated out of the fruits of the judgment, as it would be to suffer the assignor to cheat him out of the means of obtaining a judgment. The court are, therefore, of opinion, that the judge erred in nonsuiting the plaintiff, and that the nonsuit must be set aside, with costs, to abide the event.
Motion granted,