Gilman Harriman & al. vs. Francis Hill, 14 Me. 127

The case was continued for advisement, and the opinion of the Court afterwards prepared by Wjeston C. J. The transfer of a debt due from one man to another, with the evidence by which it is ascertained, is a lawful transaction. The demand, out of which the one in controversy grew, was a note of hand given by one Folsom to the plaintiffs. This note was carried by Kenney to Mr. Norton, an attorney, for collection, Kenney declaring at the time, it was his property.

This declaration we doubt not is admissible, as a part of the res gesta ; and in the absence of all opposing proof, the possession of the note, with the claim and exercise of ownership over it, is evidence that it had been assigned to him. And being his property, he had a right to assign it over to another at his pleasure. The notice he gave his attorney, that he had exercised this right in favor of French, was itself

an act, which it was competent for Norton to prove by his testimony. But whether assigned to French, or still remaining the property of Kenney, is not at all material in determining the validity of the objections, raised by the counsel for tire defendant. They apply with equal force in either case. When the assignment of a chose in action was recognised as lawful, it became necessary to protect the equitable interest of the assignee. The cases, which establish this doctrine, need not be cited.

It is sufficient to remark, that the protection has been made effectual, against any improper interference, on the part of the original creditor, to defeat the assignee, or to impair his right to the enjoyment of what has been transferred to him. This is conceded in respect to the demand assigned; but it is insisted that it cannot be carried farther than the necessity of the case requires, and should not be extended to a succession of demands, of which that assigned fonned the original consideration.

The assignment carries with it an authority to use the name of the assignor, in enforcing the collection of the demand assigned. If extended to derivative claims, courts would take care that this should not be done to his injury. It is not our intention to lay down any general rule, which is to be drawn into precedent, to justify the use of the name of the assignor unnecessarily. The cases, which may require the equitable interference of the Court, are not susceptible of exact limitation. It is intended for the furtherance of right, and the suppression of wrong.

In the case before us, we are satisfied, that the defence set up is without merits, and is an attempt to escape from the obligation of a promise fairly made, upon a legal and adequate consideration. And we are further satisfied, that the course taken by the nominal plaintiffs, is inequitable on their part; that they are in no danger of sustaining loss or injury, and that they have nothing to gain by the suppression of this suit, or its termination in favor of the defendant.

On the other hand, if the suit is not sustained, the real plaintiff in interest is without remedy; for we cannot accede to the correctness of the assumption, that this is a note given to a fictitious payee. The form of the action secures to the defendant every equitable offset. He urges his disappointment in not finding the note in the hands of the payee. But he must be presumed to know, that it was negotiable by indorsement, and that it might be assigned, without being indorsed. He had no difficulty to encounter in finding the note at maturity, which he might not have foreseen, from the nature of the instrument.

The officer believed he was discharging his duty acceptably, by taking better security ; and he took it in the name of the execution creditor. And this was approved by the real party in interest. We perceive nothing so censurable in this course of proceeding, as to forfeit all claim to the protection of the Court, against the inequitable interference of the payee of the original demand.

Under the peculiar circumstances of this case, we are of opinion, that the nominal plaintiffs ought not to be permitted to defeat the suit; but that the assignee of that demand should be protected in enforcing payment against the defendant, who was substituted by his own counsel for Folsom, who gave the first note. Exceptions overruled.