| Conn. | Feb 15, 1866
The object of this scire facias is to collect of the defendant the amount of a judgment which the plaintiff recovered against Jabez Ripley. The defendant was duly summoned as the garnishee of said Jabez; and he was at one time indebted to him; but the defense was that this indebtedness had been lawfully assigned to Edward Goodman previous to the service of the process by which the debt was claimed to have been attached. The plea to the scire facias was a general denial of the facts stated in the declaration, with notice that the defendant under that plea would prove an indebtedness to Mr. Goodman, and an employment of him as the attorney of Jabez Ripley, upon a claim that he had against the estate of Oliver Ripley, and in consideration thereof an assignment of all his claims against the estate of said Oliver, and notice of such assignment to the defendant, on the 9th of November, 1860, before the commencement of the plaintiff’s suit. In the superior court the plaintiff objected to proof of this assignment .on the ground of its inadmissibility, either under the plea or notice. And the claim is, that
And it appears to us that it was correct. In the first place we think the "evidence admissible under the general issue. H appears to us to be unimportant whether in a strict technical sense scire facias bo regarded as an original civil action or suit, or in the nature of a writ of .execution. It is a proceeding in which the plaintiff, at whose instance it is issued, makes a claim upon the defendant, founded upon the facts alleged in the process. And the statement of these facts may properly enough for the purposes of pleading be called the declaration. Now one of the facts set out in this proceeding is that the defendant, at the time the original process was served, was indebted to Jabez Ripley, the defendant in the original action. This fact the plaintiff must prove, and it was denied by the general denial of all the facts, and was therefore the direct issue formed by the plea; and the fact that the debt had been assigned and notice of that assignment given to the defendant went, as we think, to disprove this fact. After the assignment, and notice of it, the debtor was no longer in any proper sense the debtor of Mr. Jabez Ripley, but he was the debtor of his assignee, Mr. Goodman. Neither a payment to the original creditor nor his discharge would have been of any avail to protect the debtor from a suit instituted by Goodman for the recovery of the debt, and although such suit, if commenced by a common law action, as distinguished from a bill in equity, might have to he brought in the name of the original creditor, yet even in that case he would be but a mere naked trustee for the benefit of his assignee, who by virtue of his owning the debt may more properly be regarded as the creditor than such trustee. It appears to us therefore that the assignor of the debt, after notice of the assignment to the debtor, was not the creditor of the latter, within the meaning of the statutes authorizing debts to be attached by our process of foreign attachment; and on this ground the evidence of such assignment and of notice
But if it were necessary to resort to the notice of the facts which the defendant would prove under such general denial, we should feel strongly inclined to hold that the action of scire facias was “ an action at law ” within the meaning of the statute of 1848, prescribing the form of the general issue in such actions, and authorizing special matter to be given in evidence by the defendant on giving notice at the time of pleading of the matter which would be the subject of proof ;under such issue.
The object of that act was to simplify the pleadings in all actions at law, and hence a form of general issue was prescribed which is applicable to them all. And it is as applicable to the proceeding by scire facias as to one of the common law actions that have a general issue, or had one previous to the enactment of that statute. A scire facias comes within the literal meaning of the words “ all actions at law.” Though a judicial writ, it is still an action, may be pleaded to as such, and is released or discharged by a release of all actions. Williams, J., in Ensworth v. Davenport, 9 Conn. R., 392, citing Fenner v. Evans, 1 T. R., 268 ; Grey v. Jones, 2 Wils., 251; Pultney v. Townson, 2 W.Bla. R., 1227; 2 Tidd’s Prac., 1046 ; Co.Litt., 290. As it comes therefore within the literal meaning of the words of the statute, it is for the plain- - tiff to show that it is not within its spirit and intent, or the words should be construed according to their natural import. We think that he fails entirely in doing this. It is impossible to give any reason for passing this statute and making it applicable to common law actions, which does not apply with equal force to an action of this description. A general denial of the facts alleged by a plaintiff is as applicable to one action as to another, and the circumstance that there was formerly no specific form of a general issue to this action, is wholly insufficient as a ground on which to found a decision that it was not intended to include it with other actions when a general issue was prescribed that is as appropriately applica
The question whether the debt described in the notiee is a different debt from that set forth in the writ as having been attached in the original action, becomes unimportant by our opinion that the assignment was properly received in evidence under the general denial without reference to the notice.
It is claimed however that the assignment itself was fraudulent and void, and within the statute against fraudulent conveyances, in consequence, it is claimed, of its being made with intent to avoid the debts of others.
It is claimed to be so, first, because the costs and expenses of the collection of the debt were to be deducted from the amount recovered, and the balance only applied in payment of the debt to Mr. Goodman. But we perceive nothing objectionable in this. Mr. Goodman of course was not to be the gainer by deducting the costs and expenses of the litigation. He was entitled to payment of his debt in full, and if lie chose to take payment in a collateral article, or in a chose in action, it seems only equitable that the expense of obtaining possession of the article or of reducing the chose in action to his actual possession, should be borne by the party who was bound to pay him ; and if the party was willing to bear this expense, we know of no rule of law to prevent his doing so.
It is again insisted that the provision, that, after paying the assignee’s debt, the surplus was to be applied to the payment of any future indebtedness to him which the assignor might incur, rendered the assignment void. Such arrangements as this we presume are very common, and if they are fairly entered into there can be nothing objectionable in them. Of coui’se if there was no such indebtedness at the time when the avails of the assigned debt came into the hands of the assignee, the surplus, if any, might be attached by a creditor of the assignor, and if not attached he would be liable for it to the assignor. Where the debt assigned is larger than the débt for the payment of which the assignment is made, or
But it is said, again, that the provision for the return of any surplus to the assignor, after satisfying the assignee’s claims, rendered the assignment void. We have no occasion to controvert the position of the plaintiff, that a general assignment of all a debtor’s property for the benefit of his creditors is void if it contain a stipulation or reservation for the benefit of the debtor, and if this was an assignment of a part of his property to trustees for the benefit of a portion of the assignor’s creditors, no doubt it would be void under the express provision of our statute in relation to such assignments. But this is not a general assignment of all, or, so far as we know, of the principal part of the debtor’s property for the benefit of creditors, nor is it an assignment to a trustee for the benefit of creditors. It is rather an assignment of a particular and specific claim that the assignor had, in payment, so far as the amount to be collected from it is concerned, of a specified debt of the assignee. And although the motion shows that, at the time of the assignment, the assignor was in insolvent circumstances, yet it does not appear that the assignment was with a view to such insolvency. It is like the case of a specific chattel, sold to a creditor in payment of his debt, and in such a sale, if it should so happen that the chattel was sold for a larger sum than the amount of the debt paid by such sale, we presume it would hardly be claimed that the sale was fraudulent and void because the purchaser at the time of the sale agreed with the vendor to repay the surplus to him. It is true that such a sale made with a view to insolvency, and for the purpose of preferring the creditor to the other creditors of the insolvent, would be void by the express terms of our statute. But nothing of this sort appears in the case.
It appears to us therefore that the rulings and final decision of the superior court in the case were correct, and a new trial is therefore not advised.
In this opinion the other judges concurred.