JAMES BROWN v. J. J. AYRES et als., 33 Cal. 525

By the Court, Shafter, J.: The plaintiff recovered a judgment against the defendants for the sum of five hundred dollars and costs, and thereafter assigned it for a valuable consideration to S. L. Cutter. Subsequent to the assignment, and before notice thereof to the defendants, they paid the amount of the judgment, less twenty-nine dollars and fifty cents, to the Sheriff of the City and County of San Francisco, who had served a garnishment upon them in Dill et al. v. Brown, and to the Constable of one of the townships in said city and county on an execution held by him for collection in Vantine et al. v. Brown.

The question is, whether the payments so made by the defendants to the Constable and Sheriff satisfy the judgment pro tanto as against the assignee, Cutter. The fifth

section of the Practice Act is as follows: “ In the case of an assignment of a thing in action the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment.” The question presented, though a new one in this State, has been twice passed upon in New York. (Countryman v. Boyer, 3 Howard Pr. 386; Robinson v. Weeks, 6 Howard Pr. 161; and Richardson v. Ainsworth, 20 Howard Pr. 530.) It was considered in both cases that the rights of the assignee were unaffected by payments made by the judgment debtor under the two hundred and forty-eighth

section of the code (answering to the two hundred and fortieth

section of the Practice Act), notwithstanding the judgment debtor malc-. ing the payment had no notice of assignment. Both cases were thoroughly considered, and the conclusion arrived at is in our judgment correct. The defendants here, rely upon the fifth

section of the Practice Act, as furnishing the test by which the validity of their defence is to be tried. We consider, however, that the question turns upon the two hundred and fortieth

section of the Practice Act, rather than the fifth. The fifth

section deals generally with the rights of assignees, while the two hundred and fortieth

section deals with the powers of judgment and other debtors, under certain very exceptional circumstances, to do a very anomalous thing. Payment of debts by persons having no relations to them, meets with no encouragement at common law. It is apparent that such persons were regarded by it as officious intermeddlers in other men’s matters, though they were spoken of by the milder name of “ volunteers.” The two hundred and fortieth

section of the Practice Act states a case in which a third person may voluntarily pay the debt of another. The facts constituting the special case are all given, and the presence of each fact is essential to the power. There must he a judgment, and an execution thereon against property, and the person making the payment must be indebted at the instant to him against whom the execution runs. If he stands in that relation in fact, at the time indicated, then under the power so conferred, he may administer upon the estate of the execution debtor pro tanto.

How at the time the defendants herein paid the two debts to Brown named in the agreed statement, they were not indebted to Brown. They were, in legal judgment, the debtors of Cutter, the assignee, to whose representatives the judgment would have survived in case of his death. Had the defendants made the payments under a valid judicial decree, the case might require further and perhaps different consideration. But Ayres & Co. were not compelled; they yielded to solicitation, paying for no other apparent reason than that they were asked so to do.

Before yielding to the request, it behooved them to ascertain to a certainty that all the conditions of the anomalous power they were about to exercise existed in fact; or failing that, to claim an indemnity; and failing that, to leave the parties who approached them to their remedy. If Brown had never assigned the judgment, and the defendants had advanced money for him without his request; or being his agents, had made payments on his account over and beyond their powers, they could not have held him accountable therefor.

The payments made in this instance were also ultra vires, and they therefore fall within the rule of0 volenti non jit injuria. Order reversed. Mr. Justice Sanderson did not express an opinion,