Mourton v. Robertson

Mathews, J. delivered the opinion of the court. This suit is based on two notarial acts; by one of these, the defendant became debtor to a certain Frangois Nerault, in a sum of money exceeding the claim of the plaintiff. By the other, the creditor transferred and assigned over to the plaintifij three hundred and seventy dollars, of the sum due to the former, and of the amount transferred, the defendant paid to the assignee fifty dollars, previous to the commencement of the present action. For the balance, three hundred and twenty dollars, judgment was rendered against him, from which he appealed. . . The defence, as contained in the answer, alleges several matters of fact, of which the record affords no proof! In this court the legality and validity of the transfer of a part of the original creditor’s claim to the plaintiff, is contested on the ground, that it ■ might subject the creditor to be harrassed by a multiplicity of suits.- And as the creditor could not divide the sum due to him, into as many parts as he pleased, and bring a separate suit for each in his own name, he cannot legally do acts binding on the debtor, which lead • directly to such unlawful results. This defence would probably be entitled to great weight, had the defendant refused absolutely to acknowledge the plaintiff’s rights as trans- • ferred, but after having agreed to pay according to the transfer, [440] as evidenced by his payment of a part, we think it ought not now to be allowed to have any influence on the cause. Some objections were stated to the sufficiency of the petition, they weré not made in limine litis, and cannot now be attended to, even if they are well founded. The prayer for ten per cent, damages, on account of the appeal being frivolous, it is thought, under all the circumstances of the case, should not prevail. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be affirmed with costs.