14 Conn. 141 | Conn. | 1841
The plaintiffs brought their suit, by foreign attachment, against Joseph Mortimer, and attached a debt claimed to be due to him from the defendants upon a policy of insurance. Having recovered judgment in that suit, they brought their scire-facias against the defendants to recover their demand. Payment was resisted, by the defendants, upon the ground of an assignment of the debt made to John Mortimer, previous to the attachment. It is found, by the court below, that no notice of that assignment was given to the defendants until long after the attachment.
The question arising in this case, is, whether the plaintiffs are entitled to recover.
If the case is to be governed by the laws of this state, it is clear, that the defence cannot prevail: for the rule here, is well settled, that, in order to perfect an assignment of a chose in action, as against bona fide creditors and purchasers with out notice, notice of such assignment must be given to the debtor within a reasonable time ; and unless such notice is given, creditors may attach and acquire a valid lien; and others may purchase the debt, and gain a title superior to that of the first assignee. Bishop & al. v. Holcomb, 10 Conn. Rep. 444. Judah v. Judd, 5 Day, 534. Woodbridge v. Perkins, 3 Day, 364. And so far as regards subsequent purchasers, the same law is fully recognized and established in England. Williams v. Thorp, 2 Simons, 257 Dearle v. Hall, 3 Russell, 1. Loveridge v. Cooper, 3 Russell, 30.
But although it is not denied by the defendants, that such is the law of Connecticut, yet it is claimed by them, that the assignment was made in the state of New-York, whei-e a different rule of law applies in relation to assignments of choses in action; and that upon the principles of comity, the same effect ought to be given to the assignment here, as would be given to it, in that state.
But does it appear, that the law of the state of New-Yoi'lt differs from ours ? It is found by the court, (and as we are informed in the language of the witness,) that “an assignment of a chose in action is effectual to convey the title to the assignee, upon delivery of the instrument; and no notice need be given, by the debtor, that such claim against him had been assigned.” That undoubtedly is the law here, so far as regards the parties to the assignment. It is even good as against all persons who have notice of the assignment. But would it be effectual as against attaching creditors , and subsequent purchasers without such notice? That fact is not found by the court; nor, in our opinion, is it a necessary inference from what is found.
To justify the conclusion that the laws of the state of New-York so widely differ from ours and those of England, upon a principle, which, we believe so correct and salutary, as that requiring notice to be given of the assignment of a chose in action, to protect it against the subsequently acquired rights of other persons, it ought to be made distinctly to appear, and not left to any forced construction.
What would be the effect of such a conflict of laws upon the present case, were it proved to exist, we do not deem, it necessary to determine. Upon that question there are various and conflicting decisions. Richmondville Manufacturing
But as we are not satisfied from the finding of the court bei0Wj that any material difference exists between the law of this state and that of New-York, we are of opinion, that the plaintiffs are entitled to judgment for the amount due by the defendants on the policy, - at the time the original writ was served upon them.
Judgment for the plaintiffs.
