Rider v. Johnson

Decision Date04 April 1853
PartiesRider <I>versus</I> Johnson.
CourtPennsylvania Supreme Court

Howell, with whom was Oliphant, for the plaintiff in error.— Reference was made to Bury v. Hartman, 4 Ser. & R. 175, in which it was decided that where a bond had been assigned, a payment by the obligor to the obligee, before notice of the assignment, was a good payment. Also cited 5 W. & Ser. 367, Louden v. Tiffany, in which it was decided that in an action upon a sealed note, by which the defendant promised to pay without defalcation, he was not precluded from a defence by set-off. Northampton Bank v. Balliet, 8 W. & Ser. 318, also cited.

Deford, for defendant in error.—It was contended that the assignment by Dorrell to Rider, the defendant in the action, of a portion of the bond, was made after the transfer of the note in suit, and that it could not be set off against a bonâ fide assignee of the note, without notice by the latter, at the time of the assignment to him, of the existence of the proposed set-off: 1 Dallas 23, Wheeler v. Hughes. The off-set claimed was not a payment made to the payee of the note, or a claim arising between the parties to the note, but a claim purchased from a third person after the date of the assignment of the note. Reference was made to 1 Pa. Rep. 260; 9 Ser. & R. 137, Davis v. Barr; 2 Yeates 208.

The opinion of the Court, filed April 4, 1853, was delivered by LEWIS, J.

The assignee of a chose in action, not negotiable, takes it subject to all the defences to which it was subject in the hands of the assignor. The defence, founded upon the set-off of cross-demands, is a right secured by statute, and, under the law as administered in Pennsylvania, exists as well where the defendant is only the equitable owner of the cross-demand as where he has both the legal and equitable title to it. Where a right exists, all the means necessary to its enjoyment go with it as a necessary incident. If it might be defeated by a secret assignment of the plaintiff's demand, the right would not only be destroyed, but the attempt to exercise it would, in many cases, be attended with great peril, and sometimes with utter ruin to the defendant. If a debtor, in the lawful pursuit of his business, parts with his money or property in consideration of the transfer of a cross-demand against his creditor, with a view to a set-off, it would be unjust to deprive him of this right by a previous assignment of which he had no notice at the time he parted with the consideration. He has as good a right to purchase a cross-demand to extinguish the claim against himself by set-off, as he had to accomplish the same object by a direct payment. In the latter case it is not pretended that he could be compelled to pay the debt a second time. The principle is precisely the same in each case. In both cases a valuable consideration is parted with in good faith; and the distinction is immaterial, that in one it is done by a direct payment, and in the other by the acquisition of a cross-demand, which secures to the debtor the right of doing it by set-off. In neither case would it be just to drive the debtor to the trouble and expense of recovering his cross-demand by action, or to expose him to the peril of losing it entirely by insolvency. The maxim, prior in tempore potior in jure, holds, it is true, wherever it has not been inverted by enactment, or where the benefit has not been lost by misconduct or imprudence; but it must not be allowed to protect a party who has neglected a requisite precaution to save others from imposition. That a man is bound to enjoy his...

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20 cases
  • United States Brick Co. v. Middletown Shale Brick Co.
    • United States
    • Pennsylvania Supreme Court
    • 25 d1 Abril d1 1910
    ...this state that a defendant's right of set-off, unconnected with the cause of plaintiff's action, rests upon the statute (Rider v. Johnson, 20 Pa. 190, 192; Tagg v. Bowman, 108 Pa. 273, 277 [50 Am. Rep. 204]), and is not therefore controllable by any equitable discretion (Dry v. Filbert, 2 ......
  • Walker v. Emerich
    • United States
    • Pennsylvania Supreme Court
    • 17 d1 Março d1 1930
    ...7 Pa. Super. Ct. 98), though the record showed a transfer to another (Henry v. Brothers, 48 Pa. 70), the payee in a note (Rider v. Johnson, 20 Pa. 190), or one entitled to record fees, though assigned (Com. v. Sides, 176 Pa. 616, 35 A. 136). Of course, the contrary would be true if the hold......
  • Welton v. Littlejohn
    • United States
    • Pennsylvania Supreme Court
    • 12 d4 Julho d4 1894
    ... ... that it was subject to in the hands of the assignor: ... Wheeler v. Hughes, 1 Dal. 23; Rider v ... Johnson, 20 Pa. 190; Horstman v. Gerker, 49 Pa ... 282; Ashton's Ap., 73 Pa. 153; Earnest v ... Hoskins, 100 Pa. 551; Morgan's Ap., 126 ... ...
  • First Nat. Bank of Bangor v. Bangor Trust Co.
    • United States
    • Pennsylvania Supreme Court
    • 13 d1 Maio d1 1929
    ...the original obligor was notified of intervening rights of some third party prior to the acceptance of such direction. Rider v. Johnson, 20 Pa. 190; Miller v. Kreiter, 76 Pa. 78; Florence v. IX, L. & W. R. R. Co., 258 Pa. 456, 102 A. 133; Gaullagher v. Caldwell, 22 Pa. 300, CO Am. Dec. 85; ......
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