Day v. Abbott

The opinion of the court was delivered by Williams, Ch. J. This action was commenced in February, 1840, before the Revised Statutes went into operation. It is an action on book, and, after the account had been adjusted by auditors, the defendant plead in offset a judgment in his favor against the plaintiff, Day, recovered in April, 1837, on which was due, at the time the plea was filed, the sum of two hundred and ten dollars and thirty cents. To this plea the plaintiff replies that, before the commencement of this suit, Abbott, the defendant, was indebted to Chapin Keith in the sum of twm hundred dollars, and to secure Keith for what was then due, and what should thereafter be due him from Abbott, he assigned and transferred the judgment to Keith, of which Keith, having the execution which [635] issued on the judgment in his possession, notified the plaintiff, Day, before the commencement of this suit; and that, on the 20th of June, 1841, he, Abbott, also assigned to one Towne the same judgment, to secure him for a debt of forty-five dollars which he, Abbott, owed Towne, of which, also, notice was given to Day. To this replication there is a demurrer. At the time this suit was commenced, no provision was made by the statute authorizing a plea in offset in an action on book; and, from the mode of proceeding in such action, no such plea could be received. Provision was made, in other actions, where the defendant had an unliquidated account, that he might file a declaration on book and have the account liquidated, and then plead the sum, ascertained to be due, in offset. We are not prepared to say that the Revised Statutes, on this subject, could have any effect on actions then pending. When this suit was commenced, the plaintiff was not liable to be defeated by a plea in offset; and it is not readily perceived that the legislature could enable a party to avail himself of a defence, in a pending suit, which he could not have done prior to, and except by, the legislative enactment. But waiving the consideration of this question, we think the replication is a complete and sufficient answer to the plea in offset. The object of the plea is to enable Abbott to obtain satisfaction of the judgment against Day out of the money found due from him to Day in the present action, and thus to collect and appropriate to his own use the judgment which he has once transferred and assigned to others, his creditors. It is now well settled that courts of law, as well as courts of equity, will protect the rights of an assignee of a chose in action, and will not permit a person, after he has assigned a chose in action for a valuable consideration, to defeat it by any discharge which he may give; and, as a consequence of this, they will not permit a defendant to avail himself of any defence arising from any transaction between him and the plaintiff, or any discharge from the plaintiff, executed after the assignment. In the case of Legh v. Legh, 1 Bos. & Pul. 447, the court would not permit a defendant to plead a discharge from the nominal plaintiff, who had assigned the demand ; and in the case of Winch v. Keely, 1 Term R. 619, [636] where the bankruptcy of the plaintiff was plead in bar, a replication, setting forth that the suit, though in the name of the original party to the contract, was in reality for the benefit of another, was sustained. When the interest of the assignee cannot be given in evidence under the general issue, and in no other way can the interest of the assignee be protected, except by a replication, setting forth the transfer and assignment, such replication is good. The replication is, therefore, good in substance. It sets forth that Abbott had assigned the judgment, and had ceased to have any equitable interest therein. Day could not, after notice, avail himself of any defence thereafter to arise from any transaction between him and Abbott. The state of the indebtedness between Abbott and Keith was not a subject to be investigated by Day. If Abbott had assigned his whole interest in the judgment, of which notice was given to Day, it was not necessary for Day to allege in his replication, that Keith or Towne had any interest in the judgment, at the time the plea was filed other than is alleged in the replication. If the judgment had ceased to belong to the assignee, and had been re-invested in Abbott, he should have set that forth, in a rejoinder. The only question remaining is, whether the replication is ill for duplicity. Duplicity in a plea is fatal on a demurrer. Surplusage is not, though it may sometimes embarrass the party by requiring him to prove facts set forth, which would otherwise be immaterial. The weight of authorities is, that matters immaterial cannot operate to make a plea double. I am rather inclined to the opinion, that the statement of the assignment to Towne was immaterial and surplusage. But as Abbott may be considered as having a remaining interest in the judgment, after the assignment to Keith, of ten dollars, the two assignments may be considered as one entire transaction, parting with his whole interest in the judgment, and both together, as constituting one connected and entire proposition. In either view, the replication is not liable to the objections raised against it. The other special causes of demurrer have not been urged in argument, and do not appear to be substantial. The objections to the plea in offset are considered as fatal. The judgment of the county court is re [637] versed, and judgment must be entered that the replication is sufficient, and for the plaintiff to recover the sum found due by the auditor.