66 Me. 542 | Me. | 1877
The demurrer presents the naked question of the sufficiency of the declaration in a writ in which Decoster and another are named as defendants. The declaration is in a plea of debt, and sets out in the usual form that one Andrews at the March term, 1867, recovered a judgment for debt and costs against the defendants, and that said Andrews, on April 10, 1875, for a valuable consideration, “did transfer, sell, and assign” the same to one Bisbee, and that said Bisbee on June 1, 1875, for a like consideration paid by the plaintiff, did transfer, sell and assign the same to him. It avers that said judgment is in full force, &c., “whereby an action hath accrued to the plaintiff to have and recover of the said Chandler Decoster the said several sums,” &c., “yet the said defendant has not paid the same,” and it concludes with the ordinary averments of request and neglect and refusal by both- defendants, “to the damage of said plaintiffs.” Decoster alone demurs generally.
Chapter 235, of the laws of 1874, runs thus: “Assignees of choses in action, not negotiable, assigned in writing, are hereby authorized to bring and maintain actions in their own name, and the assignee shall hold the assignor harmless of costs, and shall file with his writ the assignment or a copy thereof, and all rights of set-off shall be preserved to the defendant.”
In support of the demurrer it is claimed that a judgment is not properly speaking, a chose in action, and therefore this statute is not applicable, and the laws of 1876, c. 102, § 2, by which an action of debt is expressly given to the assignee of a judgment which has been assigned in writing, and is not discharged, is cited to show that in the opinion of the legislature no such action could be previously maintained. But the construction 'of the law of 1874, is not affected by the later statute. Instances are not wanting in which the legislature, designing to make the law more explicit, have enacted statutes which are found to be only declaratory of the law as it previously existed. It may be that here the statute of 1876 extends an assignee’s remedy to judgments upon which execution might issue. But the question is, what is the true construction of the law of 1874? Chancellor Kent defines choses in action as “personal rights not reduced to possession, but recoverable by a suit at law.” 2 Kent’s Com., part V., p. 351.
There can be no doubt that a judgment which has remained unsatisfied from 1867, to 1875, and upon which apparently no execution could now issue, and which must be collected, if at all, by a new suit, comes strictly within this definition. Inasmuch as the execution is one step in a suit at law, necessary to the enforcement of the creditor’s rights, it might well be said that a judgment upon which execution could issue, falls within the same category.
Kent and all standard writers on elementary law include under the general head of things in action, “money due on bond, note, or other contract.” A debt of record constitutes a contract of the highest nature, being established by the sentence of a court
The demurrer admits the assignment; and the presumption is, that it is a valid assignment. If the defendant would have questioned its validity or sufficiency, he should have done so by plea or brief statement. Lawrence v. Chase, 54 Maine, 196, 199.
While it would have obviously been the better practice for the plaintiff to set out his title and the mode of transfer more fully, wo do not think that the failure to do so can be regarded as fatal under the pleadings. The same must be said of any alleged failure to file the assignment with the writ, according to the requirement of the statute.
As against this defendant, Decoster, the right to maintain the action is specifically alleged. The other defendant, not appearing, can never be heard in error to allege any want of form. Page v. Danforth, 53 Maine, 174. The defeet as to him, cannot avail this defendant. Had there been an absolute non-joinder, it would have been good only in abatement. There seems to have been some confusion in the pleader’s mind as to the respective number of the parties plaintiff and defendant; but for reasons before alluded to, we see nothing that can be regarded as fatal on demurrer. Exceptions overruled.
