Best v. Strong

By the Court, Marcy, J. The first question presented by this case is, whether the character in which the plaintiff sued as assignee of Plainer was admitted by the pleadings. It is contended by the plaintiff, that the defendant, by pleading in chief, has admitted upon the record his right to maintain the action as assignee ; and if this right was intended to be contested it should have been put in issue by a plea in abatement. The case of Schermerhorn v. Jenkins, (7 Johns. R. 373,) was adduced as an authority to support this position. It is a well settled principle,, of law, that the infancy of the plaintiff should be presented by a plea in abatement, and the defendant cannot object to his appearance at the trial. The objection in this case involves more than the mere right of the plaintiff to appear and prosecute the action. No precedent has been found in the books of such a plea as it is contended the defendant should have put in, if he questioned the right of the plaintiff to maintain the suit as assignee. This precise question does not appear to have been presented to our courts, and I have looked into the decisions of the English courts for an authority in this case. I am inclined to think that they have regarded the averment in the declaration, that the plaintiff is an assignee of the insol [324] vent or bankrupt, a substantial one, that must be proved to entitle him to recover. In order to prove property, where the action is brought by an ass'8'nee °f a bankrupt, it is necessary to shew, 1. That the bankrupt was a trader within the statute; 2. The act of bankruptcy; 3. That the commission was regularly granted ; 4. The assignment to the plaintiff; 5. Property in the bankrupt. (Bull. N. P. 37.) Similar positions are reiterated in Starkie’s Ev. part 4, p. 140, 1. It is there said, that “ assignees of a bankrupt, who claim in the Character of assignees, and not in their own right, must prove all the steps which are essential to constitute the party a bankrupt and themselves his assignees.” To establish their title to the bankrupt’s property they must prove, 1. The commission ; 2. The trading; 3. The act of bankruptcy; 4. Petitioning creditor’s debt; 5. The assignment. (Starkie’s Ev. part 4, p. 141, 144, 159, 166.) I have examined most of the cases referred to, and they appear to warrant the positions in this elementary treatise. In the case of Bay and others, assignees, v. Davis and others, (2 Moore, 3, 8 Taunt. 134, S. C.) the plaintiffs declared as assignees of certain persons named as bankrupts, and on the trial, proved their title as assignees under three separate commissions, instead of one joint commission. An objection was taken to the variance between the declaration and the, evidence, and sustained by the king’s bench. Dallas, J. observes: “ The question is not whether there be a common fund in which the plaintiffs have a common interest, but whether they have a common title. On the declaration, they appear to have a joint title, but the evidence shews the fact to be otherwise.” Burrough, J. remarks : “ The declaration and the facts appearing in evidence are at variance. It is necessary that every substantial averment in the declaration should be proved true, and, in this instance, the averment is not true.” The substantial averment which Mr. Justice Burrough says should have been proved, but was not, I understand to be the plaintiffs’ description of themselves as the assignees of the defendants, whereas the evidence which they adduced [325] on the trial shewed that they were assignees by three different commissions, and not by one joint commission, as the declaration imported. In the case of Evans v. Mann, (Cowp. 569,) the court say that the plaintiff need not name himself assignee of the bankrupt when he sues for goods sold by the bankrupt after the commission of bankruptcy has issued. In giving the opinion in this case, Lord Mansfield says, that “it was not necessary that the plaintiffs should state themselves in the declaration to be assignees, though, in respect of the evidence in support of the action, it might be incumbent on them to prove the trading, bankruptcy, &e. ; in short, the whole of their case.” The case of Stonehouse and another, assignees of De Capiet v. De Silvia, (3 Campb. 399,) is also an authority to shew that the plaintiff must on the trial prove himself to have the character in which he sues. The plaintiffs described themselves to be the assignees of De Capiet, and declared upon a contract made with him before his bankruptcy by the defendant. The proof shewed a joint commission put in against De Capiet and one Perira de Souza Coidas. The defendant’s counsel objected that the plaintiffs had not properly described themselves in the declaration. Lord Ellen-borough decided that the evidence supported the description the plaintiffs had given of themselves. These cases clearly shew that the description the plaintiff gives of himself as assignee of a bankrupt, is regarded as a substantial averment in the declaration, and must be proved to entitle him to recover. The plaintiff in this case, in order to establish bis right to recover, should have shewed himself to be what he stated in his declaration he was, the assignee of Henry Plainer. Not having done so, the defendant’s motion at the trial for a non-suit should have been granted. A bare perusal of the agreement between Plainer, Kilts and Maxwell, of the one part, and the defendant of the other, cannot fail to shew it to have been made in violation of the statute to prevent and punish champerty and maintenance. (20 Johns. R. 386.) If the $1500 was received by [326] the defendant in pursuance of this illegal contract, Plainer could not, and if he could not, his assignee cannot, maintain an action for the recovery of it. (Day, 696. Starkie’s Ev. 4th pt. 119.) That the contract was illegal and void, and that neither party to it could sustain a suit upon it, or enforce rights derived from it, will hardly admit of a question ; but there may be some doubt whether the $1500 was received under this agreement. I am, however, inclined think it was. The chancery suit, on the compromise of which the money was received, was pending when the agreement was entered into by the parties, and it was the subject of stipulations between them. The defendant was to furnish the means for its prosecution, defray a fourth part of its expense, and participate in the benefits of its result, if it should be successful. He mainly contributed to the favorable compromise which was effected. Although Plainer objected to the payment of the money to the defendant, yet, as the negotiation could not be concluded without the defendant’s assent and co-operation, which he refused without receiving such payment, it must be inferred from the testimony that Plainer agreed to this disposition of it, on receiving the promise of the defendant to settle with him fairly, and pay the balance, if any should be due. The defendant claimed the money as Platner’s attorney and agent under the agreement, and his promise to settle and pay over the balance must be deemed, I think, to be a settlement under the illegal contract, and according to its terms. If this view of the transaction be correct, the plaintiff ought not to have recovered any thing on account of the $1500. New trial granted.