Robbins v. Bacon

• Decision Date: 01 May 1825
• Citation: 3 Me. 346
• Parties: ROBBINS, plaintiff in error v. BACON
• Court: Maine Supreme Court

3 Me. 346

ROBBINS, plaintiff in error v. BACON

Supreme Judicial Court of Maine, Cumberland

May, 1825

THIS was a writ of error coram vobis, to the Court of Common Pleas, in which the question was upon the validity of the assignment of a book debt.

It appeared from the record sent up, that a book debt, amounting to nineteen dollars and thirty four cents, being due from the defendant to the plaintiff, the latter drew out a bill of the particular items, at the bottom of which he wrote the assignment in question, in the following terms; --" Capt. Samuel Bacon--Sir, For value received please to pay Wm R. & C. Stockbridge, nineteen dollars and thirty-four cents and the same shall discharge the above bill. N. Yarmouth March 23, 1824. Thaddeus Robbins."

Soon afterwards one of the assignees called on Bacon for the amount, saying that he had an order from the plaintiff for it, but shewing none,--and inquiring if he could pay it which Bacon declined doing till he could see Robbins, as he thought the charges too high. The next day Bacon was summoned as the trustee of Robbins, at the suit of another creditor after which Stockbridge shewed him the order, and requested payment, which was declined on account of the foreign attachment. The original suit in this case was then instituted for the benefit of the assignees; after which Bacon, upon his examination in the Court of Common Pleas, disclosed all the foregoing facts, and was there adjudged the trustee of Robbins, and paid the amount to the judgment creditor, deducting his own fees for travel and attendance.

Upon this evidence Whitman C. J. instructed the jury that as the Messrs. Stockbridge did not give the defendant any intimation that they were the owners of the demand in question, or that it it had been assigned to them, other than what was apparent on the face of the account and order, the defendant was not bound to know that an assignment thereof had been intended; and therefore they ought to find for the defendant. To this opinion the plaintiff filed exceptions.

The first error assigned was upon that part of the Judge's instructions which related to the sufficiency of the assignment; --and the second was upon the point of notice. Plea, in nullo est erratum.

Judgment reversed, and order a new trial of the cause at the bar of this Court.

Greenleaf, for the plaintiff in error, cited and relied on the case of Mandeville v. Welch 1 Wheat. 285, and 5 Wheat. 286, as decisive of the validity of the assignment, it being a transfer of the whole of the fund in the hands of the debtor. And the fact of notice, he argued, was sufficiently apparent from the disclosure of the trustee himself, who appears to have well understood that it was an order for payment of the debt. The time of the notice is not material, provided it be prior to the disclosure.

Neither ought the payment of the money under a judgment to avail the defendant, because it was a judgment to which the Stockbridges, the assignees, were not parties.

Fessenden and Deblois, for the defendant in error, cited and commented on the decisions in Massachusetts and this State, extending the protection of the law to equitable assignments, but observed that in all these cases the whole evidence of debt had been passed into the hands of the assignee; and they were all instances of express contracts. In Dix v. Cobb 4 Mass. 508, the assignment of a book debt was by deed poll, expressing the consideration, and exhibited to the debtor. But in no instance it is believed, has this favor been extended to a parol transfer of an implied promise, as in the case at bar.

As to the second error, they contended that it was necessary that the debtor should be distinctly notified of the fact of the assignment, its sufficiency in point of form, and that it was upon valuable consideration. But neither of these particulars being made known to him, they could not be stated in his disclosure. He could only disclose such facts as the creditor and his assignee enabled him to relate; and upon these facts he was rightly adjudged trustee. Decoster v Livermore 4 Mass. 101. Foster v. Sinkler 4 Mass. 450. Clark v. Brown 14 Mass. 271. Wood v. Partridge 11 Mass. 491. Besides, that judgment is in full force, and cannot be avoided by plea, but concludes all parties till reversed by writ of error. By the express language of the statute of foreign attachments, the judgment against the trustee, and payment under it, is a perpetual bar to all future actions brought against him by the principal; and of course to all actions in the name of the principal. In Foster v. Jones 15 Mass. 186, it is said that the validity of such...