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Full text of "Standard encyclopædia of procedure .."




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THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



LAW LIBRARY 



;■«■ 



STANDARD 

ENCYCLOPAEDIA of 

PROCEDURE 



EDITOR 

ARTHUR P. WILL, LL. M. 
Author "Will's Gould on Pleading," etc. 



SUPERVISING EDITORS 

JAMES DeWITT ANDREWS, Editor "Andrews' Stephen's Pleading" etc. 
Author "Andrews' American La<w," etc. 

EDGAR W. CAMP, Editor "Encyclopaedia of Evidence" 



Vol. Ill 



LOS ANGELES 

L. D. POWELL COMPANY 

CHICAGO 



1A\ 






COPYRIGHT, 1911 
BY L. D. POWELL COMPANY 



CITE THIS VOLUME 

8 STANDARD PROC, 



TABLE OF TITLES 



Arson - - - - 1 

Assault and Battery - - - - 31 

Assignment For the Benefit of Creditors - « 47 

Assignments - - — 84 

Assistance, Writs of _ - 139 

Associations ..._ ~ * 158 

Assumpsit _„ - 16*6 

Attachment — "16 

Attorneys — 847 

Audita Querela _ ~.~ - — 875 

Bankruptcy Proceedings — 881 



ARSON 

I. DEFINITION AND DISTINCTIONS.. 3 

A. At Common Law, 3 

B. Statutes, 3 

1. In General, 3 

2. Statute Prescribing Punishment Merely, 3 

3. Degrees of Offense, 3 

C. Distinction Between Arson and Burning With Intent To 

Defraud Insurer, 4 

II. THE INDICTMENT, INFORMATION, ETC., 4 

A. Arson, 4 

1. Statements of P ' jles as to Pleading the Offense, 4 

a. In General, 4 

b. Test of Sufficiency, 4 

(I.) Generally, 4 

(II.) Statute Same as Common Law, 4 

(III.) Charging in Language of Statute, 5 

c. Duplicity, 5 

d. Naming the Offense, 5 

e. Joinder of Counts, 5 

f. Degree of Crime, 6 

(I.) Not Necessary To Allege, 6 

(II.) Negativing Aggravating Circumstances, 7 

g. Conclusion of Indictment, etc., 7 

2. Particular Elements of Offense, 7 

a. In Respect of the Burning, Setting Fire, etc., 7 

(I.) The Fact, 7 

vol m 



2 ARSON 

(A.) Necessity, 7 

(B.) Sufficiency, 8 
(II.) Force and Arms, 8 
(III.) Time, 8 
(IV.) The Intent— Malice, etc., 9 

(A.) Generally, 9 

(B.) Intent To Burn or Destroy, 9 
b. In Respect of the Building Burned, 10 
(I.) Character, 10 
(II.) Contents, 13 
(III.) Location of Property, 13 
(IV.) Presence of Human Being, 14 
(V.) Ownership, Possession, etc., 15 

(A.) Necessity, 15 

(B.) Sufficiency, 17 
(VI.) Value of Property, 19 

B. Burning With Intent To Defraud Insurer, 19 

1. Certainty, 19 

2. Ownership of Property, 20 

3. Zw*e?i£ To Defraud, 20 

4. Fact of Insurance, 20 

5. Description of Insurer, 21 

C. Attempts To Commit Arson, 21 

D. Conspiracy To Commit Arson, 23 

III. VARIANCE BETWEEN ALLEGATIONS AND PROOF, 23 

A. In General, 23 

B. Ownership, 26 

C. Location of Property, 28 

D. Value of Property, 28 

IV. INSTRUCTIONS, 28 

V. FORM OF VERDICT, 29 
V©L m 



89 



ARSON 



1. DEFINITION AND DISTINCTIONS. — A. At Common Law.— 
At common law, arson is denned as the wilful and malicious burn- 
ing of the dwelling or outhouse of another. It was peculiarly an 
offense against the habitation and its possession. Eence the burn- 
ing of one's own house, of which lie had possession, was not arson 
at common law; 1 although if the house was in a town, or so near 
to the houses of others as to endanger them, it was a high mis- 
demeanor. 2 

B. Statutes. — 1. In General. — Not only in England, 3 but in most 
of the United States, however, statutes are to be found defining the 
crime of arson ; 4 or if not, denouncing the offense eo nomine* at least 
providing a punishment for an offense consisting of all the constit- 
uent elements of arson, and extending the offense probably to build- 
ings and property not recognized by the common law definition as 
being the subjects of arson. 

2. Statute Prescribing Punishment Merely. — If the statute pro- 
vides only for the punishment of the crime of arson, without defin- 
ing it, the offense is left as it stood at common law, to which resort 
must be had for its definition. 7 

3. Degrees of Offense. — These statutes not only enlarge the sub- 
jects of arson, but make it a felony, or a misdemeanor, visited with 
punishment differing in severity according to the circumstances at- 
tending the act and the character of the subject. 8 Thus, in some 
of the states, the crime of arson is by express statute divided into 
three degrees: the first having reference specially to the protection 
of human life; the second having reference to the character of 



1. 4 Bl. 220; 1 Hale P. C. 566; 2 
East P. C. 1015. See also: Ala. — 
Davis v. State, 52 Ala. 357. Ark.— 
Mary v. State, 24 Ark. 44, 81 Am. Dec. 
60. Conn. — State v. Toole, 29 Conn. 
342; State V. McGowan, 20 Conn. 245, 
52 Am. Dec. 336. Md. — Kellenbeck 
v. State, 10 Md. 431, 69 Am. Dec. 166. 
N. Y. — People v. Fanshawe, 137 N. Y. 
68, 73, 32 N. E. 1102. 

2. 2 Puss. Crimes, 9th ed. 1024, et 
scq.; Bouv. Law Diet. (Rawle's ed.). 

3. 24 & 25 Vict., c. 97. See Queen 
v. Newboult, L. E. 1 C. C. (reserved) 
344. 

4. "Arson is the wilful and mali- 
cious burning of a building, with in- 
tent to destroy it." Cal. Penal Code, 
§447. 

"Under our statutes as was the case 
at the common law, arson is an offense 
against the possession, rather than the 
property." Johnson v. State (Ala.), 55 
So. 268. 

5. As in Louisiana, where it is held 
that under the generic term arson are 



included the offenses prescribed in the 
Louisiana statute, each of which is but 
one class of arson, and to which dif- 
ferent measures of punishment are at- 
tached. State V. Fulford, 33 La. Ann. 
679. 

6. Lipschitz v. People, 25 Colo. 263, 
53 Pac. 1111 (compare the statutes of 
other states on this question); Com. 
v. Smith, 151 Mass. 491, 24 N. E. 

As for Example in Wisconsin.— Sanb. 
& B. Ann. St., § 4399 et seq. See State 
v. Kroscher, 24 Wis. 64; Lacy v. State, 
15 Wis. 13. 

7. Ky. — Aikman r. Com., 12 Ky. L. 
Rep. 894, 18 S. W. 937. Md. — Coch- 
rane v. State, 6 Md. 400. Vt. — State 
o. Bannett, 54 Vt. 83. 

8. Ala. — Davis v. State, 52 Ala. 
357 Cal. — Penal Code, § 453. See 
People V. Coch, 53 Cal. 627. La.— 
State v. Gregory, 33 La. Ann. 737; 
State V. Fulford. 33 La. Ann. 679. N. 
Y. — Debren r. People, 22 N. Y. 178. 
Compare Freund P. People, 5 Park Cr. 
198. 

Vol. in 



4 ARSON 

the property to which fire is set, or which is hurned, and the third 
having reference essentially to the protection of property merely. 9 

C. Distinction Between Arson and Burning With Intent To De- 
fraud Insurer. — The crime of burning insured property with in- 
tent to defraud the insurer is a different offense from arson, either 
under the common law or under the statute, both in respect of the 
essential elements which constitute the offense and the punishment 
to be inflicted for its commission. 10 

II. THE INDICTMENT, INFORMATION, ETC. — A. Arson. — 1. 
Statements of Rules as to Pleading the Offense. — a. In General. — 
Of course, in charging arson, or its equivalent offense as defined by 
the statute, the indictment or information must allege all of the 
constituent elements of the offense. This rule is so well settled as 
to need the special citation of no authority in its support. 11 

b. Test of Sufficiency. — (I.) Generally. — The sufficiency of the in- 
dictment or information, however, is to be determined by whether 
or not it is intended thereby to charge the offense as defined at com- 
mon law or by statute. Of course, as previously stated, where the 
statute does not define the offense, but merely prescribes the pun- 
ishment for its commission, the indictment or information must 
charge the offense as defined at common law. 12 

(Hi) Statute Same as Common Law. — If the elements of the crime are 
the same by the common law and by statute, the indictment may 
follow either, as a general rule. 13 



9. As In Alabama. — ■ See Davis v. 
State, 52 Ala. 357. 

10. Mai v. People, 224 HI. 414, 79 
N. E. 633. 

11. See cases cited in the various 
succeeding sections of this title, and 
the title "Indictment and Informa- 
tion." 

12. Cochrane v. State, 6 Md. 400; 
State v. Hannett, 54 Vt. 83. 

A mere clerical mistake, which does 
not mislead or result to the purjudice 
of the accused, does not have the effect 
of vitiating an information otherwise 
sufficient. People v. Duford, 66 Mich. 
90, 33 N. W. 28, whure the word "was" 
was used instead of the word "did" 
as describing the act of firing. The 
omission of the word "fire" after the 
words "did set" is not fatal if it is 
further alleged that "the same house 
then and there, by the spreading of 
6uch fire, did feloniously, wilfully and 
maliciously burn and consume." Pol- 
sten V. State, 14 Mo. 463. 

13. State v. Snellgrove, 71 Ark. 101, 
71 S. W. 266, where the court said: 
"An indictment good under the com 
mon law would be good under our stat- 

Vol. Ill 



ute, though it may be that, under the 
common law form of indictment, one 
could not be convicted of arson for 
burning a bridge or for burning cer- 
tain other structures which the statute 
covers. But though, under the alle- 
gation that the defendant burned a 
house, the state would not be permit- 
ted to prove that he burned a bridge, 
still the indictment would be a good 
indictment for burning a house, and 
not subject to demurrer on the ground 
that it stated no offense, or that it was 
too indefinite and uncertain. Now the 
form of indictment for arson at com- 
mon law, says Bishop, charges that the 
defendant at a time and place 'a cer- 
tain house of one B., there situate, 
did feloniously, wilfully and malicious- 
ly set fire to and burn.' 2 Bishop, 
Crim. Proc. (3d ed.), §33. It will be 
noticed that it was not necessary to 
describe the building as a dwelling 
house, as in indictments for burglary, 
the word 'house' in indictments for 
arson being sufficiently descriptive of 
the structure burned. Comparing this 
form of the common law indictment 
with the indictment in this case, we 



ARSON 



(III.) Charging in Language of Statute. — But where the indictment or 
information is brought under a statute which defines the offense, it 
must clearly state all the facts and circumstances which constitute 
the offense as defined by the statute. 14 And ordinarily it is sufficient 
to charge the offense in the language of the statute creating and de- 
fining it. 15 But this is not sufficient where the statute merely names 
a common law offense and fixes punishment but does not define or 
enumerate the elements of the crime. 16 The precise language of the 
statute, however, need not be used, provided words of equivalent im- 
port or meaning are employed. 17 

c. Duplicity. — Of course the pleader must not charge two separate 
and distinct offenses. 18 

d. Naming the Offense. — 19 

e. Joinder of Counts. — Where the offenses charged in the several 
counts of an indictment are not repugnant, but grow out of the same 
transaction, and are mere variations of the statement of the same 
act, such counts may be joined, although some of them charge the 
offense as a felony and others as misdemeanor. 20 



eee that the latter contains at least 
some surplusage; for, having alleged 
that the defendant did feloniously, wil- 
fully and maliciously burn a certain 
house, it was unnecessary to allege that 
he did so with the intention to injure 
and destroy it." 

14. May v. State, 85 Ala. 14, 5 So. 
14; People v. Fairchild, 48 Mich. 31, 11 
N. W. 773. 

An indictment should pursue the pre- 
cise and technical language employed 
m the statute in the definition or de- 
scription of the offense. Lewis v. State, 
49 Miss. 354. 

15. Cal. — People v. Eussell, 81 Cal. 
616, 23 Pac. 418; People v. Giacamella, 
71 Cal. 48, 12 Pac. 302. Ga. — Hes- 
ter v. State, 17 Ga. 130. Md. — Gib- 
son v. State, 54 Md. 447. N. C. — State 
v. Hall, 93 N. C. 571. 

State v. Brand, 77 N. J. L. 486, 72 
Atl. 131, affirming 69 Atl. 1092. "An 
indictment under Act June 14, 1898 
(P. L. P. 829), § 126, charging that the 
defendant did 'wilfully and maliciously 
aid, counsel, procure, and consent to 
the setting fire to and burning of cer- 
tain goods, etc., which at the time were 
insured against loss or damage by fire, 
with intent to prejudice' certain insur- 
ance companies mentioned, held suf- 
ficient, without any more specific aver- 
ment that a fire actually occurred." 

An indictment for arson in the sec- 
ond degree in the language of the form 
prescribed by the code is sufficient. 
Cheatham v. State, 59 Ala. 40. 



16. May v. State, 85 Ala. 14, 5 So. 
14. 

17. Childress v. State, 86 Ala. 77, 5 
So. 775; Hester v. State, 17 Ga,. 130. 

18. An indictment is not double 
which charges as a single act the burn- 
ing of a number of designated dwell- 
ing-houses. Woodford v. People, 62 N. 
Y. 117, 20 Am. Eep. 464. 

A charge of burning "one house and 
tenement" does not charge two of- 
fenses. State v. Snellgrove, 71 Ark. 101, 
71 S. W. 266. 

Charging burning on a certain day 
of certain articles of merchandise, sepa- 
rately specified, charges but a single 
act of burning. Com. v. Goldstein, 114 
Mass. 272. 

Charging that the defendant "set 
fire to and burned" the building does 
not charge two crimes conjunctively. 
State v. Jones, 106 Mo. 302, 311, 17 S. 
W. 366. 

19. Where the statute defines arson, 
and various degrees thereof, an infor- 
mation accusing defendant of arson and 
charging facts constituting arson in one 
of the specified degrees, "is sufficient- 
ly specific as to the crime charged, and 
does not accuse of one crime and state 
facts constituting a different crime." 
State r. Young, 9 N. D. 165, S2 N. W. 
420. 

20. Ala.— Washington v. State, 68 
Ala. 85. N. Y. — People v. Fansham, 
137 N. Y. 68, 32 N. E. 1102. affirming 
65 Hun 77, 19 N. Y. Supp. 865. Pa.— 

Vol. Ill 



6 



ARSON 



f. Degree of Crime. — (I.) Not Necessary To Allege. — If arson is 
charged in the language of the statute the degree of the crime need 
not be alleged; that question is for the jury to determine from all 
the facts and circumstances developed in evidence. 21 

The test for ascertaining to which degree the offense belongs, both ac- 
cording to the forms given and the well settled rules of pleading, 
is the statement of facts contained in the indictment. By these the 
law fixes its character and pronounces the degree of offense charged. 
If the facts are sta'ted which are necessary to constitute arson in 
the first degree, the indictment is a charge for that offense. 22 And 
if circumstances are stated in connection with the arson charged, 
which make a case within the second degree, the indictment is neces- 
sarily a charge for that offense. 23 So, too, if facts are charged which 
constitute any kind of arson, and nothing is averred as to any cir- 
cumstances which would make the offense arson in the first or second 
degree, the indictment, if otherwise sufficient, is an indictment for 
arson in the third degree. 24 

Staeger v. Com., 103 Pa. 469. Vt.— 
State v. Ward, 61 Vt. 153, 17 Atl. 483. 
Different Houses and Owners. — An 
indictment for arson containing four 
counts, each of which charges the of- 
fense in the first degree, and comply- 
ing with the form prescribed by the 
code, although it alleges a different 
house and different ownership, is not 
subiect to demurrer for misjoinder of 
counts. Miller v. State, 45 Ala. 24 

21. People V. Kussell, 81 Cal. 616, 23 
Pac. 418. rn 

22. See Brown v. State, 52 Ala. 345. 

An indictment charging that defend- 
ant "wilfully set fire to or burned in 
the night-time the jail of Wilcox 
County, which was occupied at the time 
by persons lodged therein at night, 
against the peace, etc.," charges with 
certainty arson in the first degree un- 
der the Alabama statute. Sands v. 
State, 80 Ala. 201. 

23. See Brown V. State, 52 Ala. 345. 
Form of Indictment for Arson in 

Second Degree Under Alabama Statute. 
' ' The grand jury of said county charge 
that before the finding of this indict- 
ment Ban Hennigan > alias Dan Hanni- 
gan, wilfully set fire to or burned a 
store of the Alabama Consolidated Coal 
and Iron Company, a corporation, which 
with the property therein contained was 
worth more than five hundred dollars, 
against the peace and dignity of the 
state of Alabama." Hannigan V. 
State, 131 Ala. 29, 31 So. 89. 

Indictment for Arson in Second De- 
gree Under the Alabama Statute. — In 

Vol. Ill 



Smoke v. State, 87 Ala. 143, 6 So. 376, 
the indictment charged that the defend- 
ant " 'Wilfully set fire to or burned 
the cotton-house containing cotton of 
Montgomery Beasley; ' in the second 
count, 'the cotton-pen containing cot- 
ton of Montgomery Beasley; ' in the 
third, 'the cotton-house containing cot- 
ton of Bettie Beasley; ' and in the 
fourth, 'the cotton-pen containing cot- 
ton of Bettie Beasley.' " In holding 
the indictment demurrable the court 
said: "The indictment, in our opin- 
ion, was bad, in failing to aver with 
sufficient clearness the ownership of 
the 'cotton-house,' or 'cotton-pen,' 
alleged to have been set fire to, or 
burned. Crim. Code, 1888, § 3781. Each 
of the four counts must be construed 
to aver only the ownership of the cot- 
ton contained in the house or pen, and 
not the structure itself which con- 
tained the cotton." 

24. Brown v. State, 52 Ala. 345. 

Form of Indictment for Arson in 
Third Degree Under Alabama Statute. 
"State of Alabama, Etowah County, 
City Court of Gadsden, January Term, 
A. D. 1892. The grand jury of said 
county charge that before the finding 
of this indictment Arthur Leonard, un- 
der such circumstances as did not con- 
stitute arson in the first or- second de- 
gree, did wilfully set fire to or burn a 
building of York Eogers, to-wit, a corn- 
crib, or cornpen, containing corn, against 
the peace and dignity of the State of 
Alabama." Leonard v. State, 96 Ala. 
108, 11 So. 307. 



ARSON 



(XL) Negativing Aggravating Circumstances. — In an indictment for 
arson of a lesser degree as defined by statute, it is not necessary to 
negative the aggravating circumstances which would constitute ar- 
son of a higher degree. 25 

g. Conclusion of Indictment, etc. — An indictment for the statutory 
crime must, of course, as in the case of other offenses, conclude 
"against the form of the statute," etc. A common law indictment 
must conclude "against the peace and dignity," etc. 26 

2. Particular Elements of Offense. — a. In Respect of the Burning, 
Setting Fire, etc. — (I.) The Fact. — (A.) Necessity. — The fact of 
burning is a material element of the offense of arson, and must be 
alleged, 27 although it is not necessary, in order to sustain this obli- 
gation, to prove that any part of the house, much less the entire 
building, was wholly consumed. 28 And sometimes this is expressly 
so provided by statute. 29 

Charging Disjunctively. — Although the statute defining the offense 
of arson be in the disjunctive, viz., burn or cause to be burned, 



An indictment charging that "de- 
fendant wilfully set fire to or burned 
a cotton-house of E. H., within the 
curtilage of the dwelling-house of said 
R. H., by the burning whereof the said 
dwelling-house was burned," charges 
arson in the third degree as defined by 
the Alabama statute. Cheatham v. 
State, 59 Ala. 40. 

25. Mass. — Com. v. Hamilton, 15 
Gray 480; Com. v. Squire, 1 Met. 258. 
N. H. — State v. Emerson, 53 N. H. 
619. N. Y. — People v. Pierce, 11 Hun 
633; People v. Dunkin, 5 Park. Cr. 243. 
Wis. — State v. Kroscher, 24 Wis. 64; 
Lacy v. State, 15 Wis. 13. 

Where the statute in enumerating the 
various subjects of arson uses the 
words "or any other building not em- 
braced and provided for in" the other 
sections of the statute defining arson, 
the indictment, in describing the build- 
ing, need not show that it was not em- 
braced in such other sections of the 
statute. State v. Gregory, 33 La. Ann. 
737. 

26. Chapman v. Com., 5 Whart. 
(Pa.) 427. And see, generally, the title 
"Indictment and Information." 

If there is only one statute, an in- 
dictment concluding "against the form 
of the statutes," etc., is bad. And .so 
where there is more than one statute, 
a conclusion against the form of "the 
statute" is bad. State v. Sandy, 25 
N. C. 570. 

But when one count is against certain 



defendants as principals, and another 
against others as accessories, it is suffi- 
cient that the indictment close with the 
usual words "contrary to the form of 
the statutes," etc.; these words need 
not be repeated after each count. State 
v. Travis, 39 La. Ann. 356, 1 So. 817. 

27. Ark.— Mary v. State, 24 Ark. 44, 
81 Am. Dec. 60. Md. — Cochrane v. 
State, 6 Md. 400. Va. — Howell V. 
Com., 5 Gratt. 664. 

At common law neither an intention 
nor an actual attempt to burn a house 
will amount to a felony if no part be 
actually burned, and the word "burn" 
is necessary to a sufficient indictment; 
"set fire" is not enough. Cochrane v. 
State, 6 Md. 400. 

An information for burning a dwell- 
ing-house by setting fire to another 
building whereby the dwelling is burned 
should set forth the firing of the one 
building and that by means thereof 
the particular dwelling was burned. 
People v. Fairchild, 48 Mich. 31, 11 N. 
W. 773. 

28. Mary v. State, 24 Ark. 44, 81 
Am. Dec. 60. 

29. "Burning" Defined. — To con- 
stitute a burning it is not necessary 
that the building set on fire should have 
been destroyed. It is sufficient that 
fire is applied so as to take effect upon 
any part of the substance of the build- 
ing. Cal. Penal Code, § 451. 

Vol. in 



8 



ARSON 



charging the offense in the conjunctive, viz. "burn and cause to be 
burned," is proper. 80 

(B.) Sufficiency. — It is not necessary to allege that the building 
was consumed or destroyed by the fire. 31 

"Set Fire," "Burn," etc. — Where the statute uses the word 
"burn," it is not sufficient to charge that the defendant "set fire 
to" the building in question. 32 In some of the statutes, however, the 
words "burn" and "set fire to" are used synonymously, and of 
course in such case either term may be used in alleging the fact of 
burning. 33 It is not necessary to allege in terms that the defend- 
ant "set fire" to the building, if the burning is otherwise sufficiently 
alleged. 34 

(II.) Torce and Arms. — It is not necessary that an indictment for 
arson should allege that the offense was committed vi et armis. 35 

(III.) Time. — In some jurisdictions the time of the act, as in the 
night-time, is one of the elements which determine the degree of 
the offense, and in order to authorize a conviction for an offense of 
that degree, the fact that the act was committed in the night-time 
must be alleged. 36 But where the time of the act is not a constituent 
element of the offense, it is of course not necessary to allege it. 37 



30. State v. Price, 11 N. J. L. 203, 
215. See also State v. Mitchell, 27 N. 
C. 350. See generally, the title "In- 
dictment and Information." 

31. Ala. — Luke v. State, 49 Ala. 30, 
20 Am. Kep. 269. Cal. — Clugston v. 
Garretson, 103 Cal. 441, 37 Pac. 469. 
Ga. — Hester V. State, 17 Ga. 130, hold- 
ing that the word "burn" must be pre- 
sumed to have been used in the sense 
of "consume with fire." Ind. — Lavelle 
v. State, 136 Ind. 233, 36 N. E. 135. 
Foe also People v. Haggerty, 46 Cal. 
355. 

32. Ark. — Marv v. State, 24 Ark. 
44, 81 Am. Dec. 60. Cal. — People v. 
Myers, 20 Cal. 76. N. C. — State v. 
Hall, 93 N. C. 571. Va. — Howel v. 
Com., 5 Gratt. 664. 

33. State V. Taylor, 45 Me. 322. 

34. People V. Myers, 20 Cal. 76, 
where the allegation was that the de- 
fendant feloniously, "wilfully and ma- 
liciously did burn or cause to be 
burned," and the- court after an ex- 
tensive review of the question said: 
"The words 'set fire to' are not a 
part of the definition of the offense, 
either by our statute, or as it would 
se m at common law; and their use in 
addition to the allegation that 'he 
burned and caused to be burned,' would 
not aid at all in apprising the defend- 

voi. in 



ant of the charge made against him. 
We believe it is not claimed that it 
was requisite to set forth the mode 
or manner of setting the fire or caus- 
ing the burning." Overruling People 
v. Hood, 6 Cal. 236. 

35. State v. Temple, 12 Me. 214. 

36. La. — State v. Gregory, 33 La. 
Ann. 737. Miss. — Dick v. State, 53 
Miss. 384. N. C — State v. England, 
78 N. C. 552. Va.— In re Curran, 7 
Gratt. 619. 

37. State v. Spiegel, 111 Towa 701. 
83 N. W. 722; Com. v. Uhrig, 167 Mass. 
420, 45 N. E. 1047. 

Although the statute may expressly 
define "night-time" as being between 
certain hours, an indictment, in chang- 
ing the time of the act, as in the 
night-time, which varies from that de- 
fined by the statute, although not suf- 
ficient as charging arson in the night- 
time, is nevertheless sufficient where 
the punishment for the offense charged 
is the same regardless of the time of 
the act. Com. v. Lamb, 1 Gray (Mass.) 
493. 

Under the Maine statute an indict- 
ment for burning a barn ^'in the day- 
time" need not allege that the barn 
was within the curtilage of a dwell- 
ing-house, that fact being immaterial, 
except where the burning is in the 



ARSON 



9 



(IV.) The Intent — Malice, etc.— (A.) Generally. — Where the offense 
is made a felony by the statute, the indictment must charge that the 
act was done "feloniously." 38 And where the statute uses certain 
words to express the intent, the indictment must use those words 
or words of equivalent import. 89 

Malice. — So, too, malice being one of the constituent elements of 
the offense of arson, that fact must be charged by appropriate allega- 
tion. 40 

(B.) Intent To Burn oe Destroy. — Unless expressly so provided by 
statute, 41 an intent to burn or destroy the building is not an element 



night-time. State v. Taylor, 45 Me. 322. 

38. Mott v. State, 29 Ark. 147; State 
r. Roper, 88 N. C. 656. 

The eharge that the defendant "wil- 
fully and feloniously" set fire to the 
house is equivalent to a charge that 
the act was done ' ' wilfully, maliciously 
and unlawfully," since it could not be 
felonious without being both malicious 
and unlawful. Young v. Com., 12 Bush 
(Ky.) 243. But compare State v. Gove, 
34 N. H. 510, which holds that 
where the statute makes criminal 
the doing of the act "wilfully and 
maliciously," it is not sufficient to 
charge that it was done "feloniously 
and unlawfully" or "feloniously, un- 
lawfully and wilfully;" the latter terms 
not being synonymous, equivalent, of 
the same legal import or substantially 
the same as the former. 

39. That the words "unlawfully, 
wilfully and feloniously" are not syn- 
onymous with "wantonly and mali- 
ciously," see State v. Pierce, 123 N. 
C. 745, 31 S. E. 847. See also State v. 
Morgan, 98 N. C. 641, 3 S. E. 927, where 
the court said: "The words, 'unlaw- 
fully and maliciously,' used, cannot 
supply the place of the word 'wan- 
tonly,' omitted, which, by the amend- 
ment mentioned, was in part substi- 
tuted for them, as was decided in State 
v. Masses, supra. Nor does the word 
'feloniously' supply the omission. This 
word implies that the act charged to 
have been done proceeded from an evil 
heart and wicked purpose. It is a 
highly technical term, and is employed 
particularly in criminal pleadings to 
describe and charge offences that pro- 
ceed from a depraved heart and import 
wicked purpose; that such offences are 
felonious in their nature, and are done 
with a deliberate intent to commit a 
crime. Wantonly, in a criminal sense, 
implies that the act was done of a 



licentious spirit, perversely, recklessly, 
without regard to propriety or the rights 
of others, careless of consequences, and 
yet without settled malice. The mean- 
ing and application of the term is well 
considered by the Chief Justice in State 
v. Brigman, 94 N. C. 888. It is essen- 
tial that the indictment shall charge 
that the defendant 'wantonly' as well 
as 'wilfully set fire to,' etc., and as 
this is not done in terms or effect, it 
is fatally defective — it does not charge 
the offense intended, and the judgment 
must therefore be arrested." 

Charging that defendant "unlaw- 
fully, maliciously, and feloniously," 
etc., amounts to a charge that the burn- 
ing was wilfully done. People v. 
Haynes, 55 Barb. (N. Y.) 450. 

If the indictment charges "wanton- 
ly and maliciously," as required by 
statute, the additional words " unlaw- 
fully, wilfully and feloniously" may 
be disregarded as surplusage. State 
v. Battle, 126 N. C. 1036, 35 S. E. 624. 
40. State v. Keena, 63 Conn. 329, 28 
Atl. 522; Jesse V. State, 28 Miss. 100. 
The word "feloniously" sufficiently 
charges malice. Aikman v. Com., 12 
Ky. L. Eep. 894, 18 S. W. 937. 

The word "malicious" is not neces- 
sary when it is charged that the act 
was done wilfully and feloniously 
(State v. McCoy, 162 Mo. 383, 62 S. 
W. 991), or wilfully, wrongfully, unlaw- 
fully and feloniously (State V. Ross, 
77 Kan. 341, 94 Pac. 270). Compare 
Kellenbeck v. State, 10 Md. 431, 69 Am. 
Dec. 166, holding that the indictment 
must charge that the burning was done 
"maliciously," it not being enough to 
charge that it was done "feloniously, 
wilfully and unlawfully." 

41. When the statute make9 intent 
to injure or defraud some person a con- 
stituent element of tne offense, there 

Vol. m 



10 



ARSON 



of the offense of arson.* 8 And an allegation that the defendant com- 
mitted the crime with intent to destroy the property may be treated 
as surplusage, and does not invalidate an otherwise sufficient indict- 
ment. 43 But where the defendant is charged with setting fire to one 
building, in consequence whereof another building was burned, such 
an intent must be alleged. 44 

b. In Respect of the Building Burned. — (I.) Character. — Of course 
the indictment should allege the character of the building burned. 45 



must be an allegation of such intent. 
State v. Porter, 90 N. C. 719. 

The California statute makes the 
"intent to destroy" one of the neces- 
sary elements of the crime of arson, 
and it is accordingly necessary that this 
essential element should be averred in 
the information. People V. Mooney, 127 
Cal. 339, 59 Pac. 761. 

The averment of the "intent to de- 
stroy" must be either in the language 
of the statute or in language that will 
clearly make it appear that the defend- 
ant had this specific intent and pur- 
pose, and that the building was burned 
by him to carry into execution such 
intent and purpose. People v. Mooney, 
127 Cal. 339, 59 Pac. 761. 

And the mere use of the words "wil- 
fully, unlawfully, feloniously and ma- 
liciously," although proper, is not 
enough. People v. Mooney, 127 Cal. 339, 
59 Pac. 761, where the court said: 
"Such words import only that criminal 
intent which is a necessary part of 
every felony or other crime, but they 
do not necessarily include the specific 
purpose to destroy the building which 
is an element of the crime of arson." 

Felonious, etc. — The intent to burn 
is sufficiently alleged by the words 
"feloniously, wilfully and maliciously" 
(State v. Bean, 77 Me. 486), or "wil- 
fully and feloniously" (State v. Mc- 
Coy, 162 Mo. 383, 62 S. W. 991). 

Intent to Injure. — Under a statute 
making it a misdemeanor to set fire to 
any building or tenement of another 
with intent to burn the same, etc., it 
is not enough to allege an "intent to 
injure the owner." Mary V. State, 24 
Ark. 44, 81 Am. Dec. -60. 

42. Me. — State v. Watson, 63 Me. 
128; State v. Hill, 55 Me. 365. N. Y.— 
People v. Fanshawe, 137 N. Y. 68, 32 
N. E. 1102, under a statute declaring 
guilty of arson in the first degree one 
who wilfully burns or sets on fire in 
the night-time a dwelling in which 



there is a human being. N. C. — State 
v. Eogers, 94 N. C. 860. 

43. State v. Snellgrove, 71 Ark. 101, 
71 S. W. 266. 

In Iowa a statute (§ 4780) provides 
that if any person wilfully and mali- 
ciously burn, either in the day or night- 
time, the building of another, he shall 
be imprisoned, etc.; and another statute 
(§ 4781) declares that if any person 
set fire to any building with intent 
to cause such building to be burned, 
he shall be imprisoned, etc. And in 
State v. Spiegel, 111 Iowa 701, 83 N. 
W. 722, it was alleged that: "The 
said Charles A. Spiegel, on the 21st 
day of February, A. D. 1899, in the 
county of Polk aforesaid, and state of 
Iowa, in the night-time of said day, 
did wilfully, feloniously, and mali- 
ciously set fire to and burn a certain 
store building then and there situated 
in Polk county, Iowa, then and there 
occupied by the Hub Show Company 
and by I. W. Cramer as a store build- 
ing, and then and there owned by one 
C. H. Martin, with a wilful, malicious, 
and felonious intent then and there 
on the part of him, the said Charles A. 
Spiegel, the defendant, to cause the 
store building aforesaid to be then and 
there burned and consumed." The 
court said: "This indictment contains 
some matter which is surplusage. It 
charges in clear and direct terms the 
burning of the building, and then adds, 
what is needless, a charge of intent to 
accomplish what was done. It seems 
to us obvious that the indictment 
charges an offense under section 4780. 
It was for this offense that defendant 
was tried, and of which he was con- 
victed. He has no just ground of com- 
plaint as to the manner in which the 
charge was made." 

44. State v. Watson, 63 Me. 128; 
State v. McCoy, 162 Mo. 383, 62 S. W. 
991. 

45. Com. v. Smith, 151 Mass. 491, 24 



vol. m 



ARSON 



11 



Following Language of Statute. — The rule that it is sufficient to fol- 
low the language of the statute defining and creating the offense ap- 
plies in respect of the allegations describing the nature of the prop- 
erty burned. 40 

Negativing Exception. — Where the statute creating and denning the 
crime of arson contains an exception so incorporated with its enact- 
ing clause that one cannot be read without the other, the indictment 
must negative the exception. Thus the qualifying words "not par- 
cel of any dwelling-house" are essential parts of the description of 
the subject of the arson, and cannot be omitted from the indict- 



N. E. 677; Com. v. Hayden, 150 Mass. 
332, 23 N. E. 51. 

A building, which has been usually 
occupied by persons lodging therein at 
night, may be charged as a "dwelling- 
house," although not so in the ordi- 
nary and popular acceptation of the 
term. People v. Orcutt, 1 Park. Cr. 
(N. Y.) 252. 

A schoolhouse is a house (Ky. — 
Wallace v. Young, 5 T. B. Mon. 155. 
Md. — Jones V. Hungerford, 4 Gill & 
J. 402. Mass. — Com. r. Horrigan, 2 
Allen 159); so is a court house (Lavelle 
t;. State, 136 Ind. 233. 36 N. E. 135); 
a factory (State v. Morgan, 98 N. C. 
641); a jail (Ala. — Lockett v. State, 63 
Ala. 5. Mo. — State v. Johnson, 93 Mo. 
73, 5 S. W. 699. N. Y. — People V. 
Van Blarcum, 2 Johns. 105. Tex. — 
Willis v. State, 32 Tex. Crim. 534, 25 
S. W. 123; Smith v. State, 23 Tex. App. 
357, 5 S. W. 219, 59 Am. Eep. 773. Va. 
Stevens P. Com., 4 Leigh 683; Com. 
v. Posey, 4 Call 109, 2 Am. Dec. 560). 
See also: Ohio. — Allen v. State, 10 
Ohio St. 287, warehouse. Tenn. — Pike 
V. State, 8 Lea 577, barrel house. Vt. 
State v. Ambler, 56 Vt. 672, sugar 
house. 

The word "house" is ordinarily in 
this connection synonymous with dwell- 
ing house, and in the usual accepta- 
tion covers everything appurtenant and 
accessory to the main building. Work- 
man v. Ins. Co., 2 La. 507, 22 Am. Dec. 
141. 

"If the building set on fire is one 
appropriated to ordinary domestic uses, 
and is situated so near to the dwelling 
house as probably to endanger it, then 
it is arson to burn it, and not other- 
wise." Gage V. Shelton, 3 Eich. (S. C.) 
242. 

In Carter v. State, 106 Ga. 372, 32 
S. E. 345, 71 Am. St. Eep. 262 (anno- 



tated case), the body of a freight car 
had been taken off the wheels and 
placed near the railway track at a sta- 
tion, and was supported upon perma- 
nent posts and was used as a freight 
warehouse. It was held that this struc- 
ture was a house and it was properly 
charged in the indictment as an out- 
house. 

In Spears v. State, 92 Miss. 613, 46 
So. 166, 16 L. E. A. (N. S.) 285, it 
was held that an indictment charging 
arson of a dwelling house was prop- 
erly drawn where the building to which 
the fire was set was a store house con- 
nected with the dwelling house proper 
by a passage way roofed over, but 
otherwise unenclosed. 

46. Gibson v. State, 54 Md. 447. 

In California the statute describes a 
"building" as any house, edifice, 
structure, vessel or other erection, cap- 
able of affording shelter for human be- 
ings, or appurtenant to or connected 
with an erection so adapted. Cal. Penal 
Code, §448. 

Under a statute providing that if any 
person shall wilfully and unlawfully 
burn a barn where wheat, corn or other 
grain is usually kept, he shall be pun- 
ished, etc., an indictment charging that 
defendant did unlawfully, wilfully, 
feloniously and maliciously set fire to, 
burn and destroy a barn of a certain 
person in which corn and oats were 
usually kept, and were then and there 
stored, is sufficient. De Shazer V. Com., 
12 Ky. L. Eep. 453, 14 S. W. 542. 

Florida Gen. St. 1906, § 3273, provides 
as follows: "Whoever wilfully and 
maliciously burns the dwelling house 
or any building adjoining such dwell- 
ing house, by the burning whereof such 
dwelling house is burnt, shall be pun- 
ished by imprisonment in the state 
[prison for life, or for such term as 

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12 



ABSON 



ment. 47 So, too, if the statute expressly describes the character of 
the building which may be the subject of arson, the description of 
the building should come within the purview of the statute. 48 



the court may direct." In Knight v. 
State (Fla.), 53 So. 541, "the indict- 
ment charged that the defendant 
'. . . did wilfully and maliciously set 
fire to and burn a certain building, to 
wit, a barn, . . .' adjoining the 
dwelling house of one George Hagans 
there situate, and by the kindling of 
said fire and the burning of said build- 
ing the said dwelling house of the said 
George Hagans was then and there wil- 
fully and maliciously burned and con- 
sumed. ' " The court said: "It is 
shown in evidence that the building was 
used as a dwelling house as alleged, 
and the court properly limited the con- 
sideration to the charge as made under 
the quoted statute. Hicks v. State, 43 
Fla. 171, 29 South. 631." 

Under a statute making the act of 
wilfully and maliciously setting fire to 
or attempting to burn a house in a city, 
town or village, an offense, such a house 
is sufficiently described in an indict- 
ment averring that it was a "certain 
gua'rd and jail-house" in a named vil- 
lage and was the property of that vil- 
lage. Howard v. State, 109 Ga. 137, 
34 S. E. 330. 

47. Gibson v. State, 54 Md. 447; 
Kellenbeck v. State, 10 Md. 431, 69 
Am. Dec. 166. 

48. In California an inhabited build- 
ing is defined as "any building which 
has usually been occupied by any per- 
son lodging therein at night." Cal. 
Penal Code, § 449. 

Under a statute making the wilful 
setting fire to or burning of a corn- 
crib arson in the second degree, an in- 
dictment is not defective for failing 
to state that the crib contained corn 
at the time it was burned. Davis v. 
State, 152 Ala. 82, 44 So. 545. 

In Childress V. State, 86 Ala. 77, 5 
So. 775, the defendant was indicted for 
arson in setting fire to a "house used 
as a prison, which was at the time oc- 
cupied by Alfred Phillips, who was 
lodged therein," etc. It was objected 
that the indictment did not sufficiently 
charge the specific act of burning a 
prison. "On this assumption of the 
legal effect and meaning of the indict- 
ment, it was contended, that the words 



used as a prison are not equivalent of 
an averment that the structure was in 
ifact a prison." The court said: "The 
contention arises from a misconception 
of the purposes and scope of the stat- 
ute, and the purport of the indictment. 
At common law, the offense is regarded 
as an offense peculiarly against prop- 
erty and its possession. In defining 
arson in the first degree, and prescrib- 
ing the penalty, the statute has special 
reference to the protection of human 
life— Davis v. State, 54 Ala. 357. It 
enlarges the subjects of arson, and 
extends them beyond those which the 
offense was considered, at common law, 
to reach. It not only designates partic- 
ular kinds of structures, but, by com- 
prehensive language, includes any house 
or building, not of the specified kinds, 
'which is occupied by a person lodged 
therein,' without respect to the uses 
to which it may be otherwise appro- 
priated. The words, used in a prison, 
were not employed as an allegation of 
the fact necessary to a conviction of 
the offense. They are merely descrip- 
tive, employed to identify the house 
burned, the ownership being unknown. 
They are surplusage. Without them, 
the indictment charges arson in the 
•first degree, substantially in the words 
of the statute. A house or building, 
whatever may be its character or use, 
if occupied at the time of the burning 
by a person lodged therein, comes 
within the statutory definition." 

In McLane v. State, 4 Ga. 335, the 
indictment charged that the house 
burned was used as a dwelling-house, 
the property of the prosecuting wit- 
ness; and it was held good. 

An indictment describing the prop- 
erty as a "millhouse" is not bad for 
uncertainty. Ford v. State, 112 Ind. 
373, 14 N. E. 241. The court said: 
" 'Mill-house' is not the most happy 
description of a building enclosing mill 
machinery, or used for milling pur- 
poses, but any one understands from 
that description that such a building is 
meant. The word ' house ' clearly 
means a building, in the ordinary use 
of the word, and such building or house 
is not necessarily the habitatien of 



vol in 



ABSON 



13 



(EC.) Contents. — Where the statute provides for the punishment of 
the offense only when the building contains other property, the 
indictment must allege that the building contained such other prop- 
erty." 

(Ed.) Location of Property. — The indictment or information must, 






man or beast. There are slaughter- 
houses, packing-houses, smoke-houses, 
etc., indicating houses in -which animals 
are slaughtered, meats packed and 
smoked, etc. So, a 'mill-house,' we 
think, would readily be understood to 
be a building or house used for milling 
purposes." 

A description of the property as a 
"certain frame building, commonly 
called a stable," sufficiently indicates 
the purpose for which the building is, 
or is intended to be, used. Dugle v. 
State, 100 Ind. 259. 

In Levy v. People, 80 N. Y. 327, 
affirming 19 Hun 383, the indictment 
charged the prisoner as accessory to 
the crime of arson in the first degree, 
in burning the dwelling-house of K., in 
which he then was. As a matter of 
fact the building was a tenement-house, 
in which the prisoner's family and K. 
and his family occupied separate apart- 
ments, and the fire which was set in 
the prisoner's rooms, burned through. 
It was held proper to describe the 
apartment as the dwelling-house of K. 
See also Shepherd v. People, 19 N. Y. 
537. 

An information charging defendant 
with burning "a two-story wooden 
warehouse building" is sufficiently 
definite in description, although in fact 
the lower story only of the building 
was used as a warehouse and the upper 
story as a lodging-house. Slate v. 
Biles, 6 Mont. 186. 

An indictment for burning "a cer- 
tain barn and an outhouse thereto ad- 
joining" need not separately charge 
the burning of each. Com. v. Lamb, 1 
Gray (Mass.) 493. 

Under a statute punishing the burn- 
ing of "any other house or building 
not embraced or provided for in the 
preceding sections" of this chapter, an 
indictment describing the building as 
an "abandoned dwelling house" is 
good. Banks v. State, 93 Miss. 700, 47 
So. 437. 

If the statute declares that "every 
house, prison, jail," etc., shall be 
deemed a dwelling-house, an indict- 
ment charging tht burning of a jail, 



must charge it as a dwelling-house. 
State v. Whitmore, 147 Mo. 78, 47 S. 
W. 1068. 

49. State v. Porter, 90 N. C. 719; 
Mulligan v. State, 25 Tex. App. 199, 7 
S. W. 664, 8 Am. St. Rep. 435. 

Under a statute making it a felony 
to set fire to or burn a corn-pen con- 
taining corn" an indictment charging 
the defendant with arson in setting fire 
to or burning a "corn-crib containing 
corn" is good. Cook v. State, 83 Ala. 
62, 3 So. 849, 3 Am. St. Kep. 688, where 
the court said: "The argument in 
support of the demurrer is, that the 
statute specifies 'corn-pen containing 
corn,' as the offense it denounces and 
punishes as arson in the second degree, 
while the indictment is for 'setting 
fire to or burning a corn-crib contain- 
ing corn.' On this ground it is claimed, 
that the burning of a 'corn-crib con- 
taining corn,' falls within the residuary 
clause in reference to the crime of arson, 
and is only arson in the third degree, — a 
misdemeanor. — Code, of 1886, § 3784. 
The phrase 'corn-crib' is not found in 
the act of January 30, 1885. We hold, 
that when the offense in this case was 
committed, the terms, 'corn-pen con- 
taining corn,' and 'corn-crib contain- 
ing corn,' had substantially the same 
popular signification; or, at least, that 
the phrase, 'corn-crib containing corn,' 
included corn-pen containing corn. 
Each of the counts charges a felony." 

Under a statute making it a felony 
to wilfully and unlawfully burn a sta- 
ble, barn or any house or place where 
wheat, corn or other grain is usually 
kept, or any other house whatever, an 
indictment charging the accused with 
burning a "barn the property of," 
etc., is sufficient, although it does not 
allege that wheat, corn or some article 
named in the statute was usually kept 
in it. Evans v. Com., 11 Ky. L. Rep. 
573, 12 S. W. 769. The court said: 
"The enumeration of certain articles 
in storage is to be read in connection 
with the words 'any house or place' 
only. Granting counsel's contention 
that if the evidence had shown the 

vol. in 



14 



ARSON 



by proper allegation, show that the property burned was within the 

jurisdiction of the court. 60 ,..-,. . e 

Although the words "there situate," usually found in indictments for 
arson following the description of the property alleged to have been 
burned, are undoubtedly the better method of statingthe location 
of the property, 51 yet their omission is not fatal to the indictment if 
the location of the property is otherwise sufficiently described. 52 

(IV.) Presence of Human Being. — Where the statute makes the pres- 
ence of a human being in the building at the time an element of 
the offense, that fact must be distinctly alleged, 63 and not left to in- 



structure to have been a stable, in- 
stead of a barn (provided there be 
any distinctions), there would have 
been a variance between the proof and 
the indictment, yet the testimony is 
that it was a barn." 

50. State v. Gaffrey, 3 Pinn. (Wis.) 
369. 

An indictment alleging that defend- 
ants "in the county of Spokane, state 
of Washington, did then and there . . . 
burn a certain storehouse building," 
etc., plainly notifies the defendants 
that the building in question was in 
the county of Spokane, and state of 
Washington. State v. Meyers, 9 Wash. 
8, 36 Pac. 1051. See also State v. Me- 
Lain, 43 Wash. 267, 86 Pac. 390. 

An indictment for burning a barn 
situate at a certain place within the 
jurisdiction of the court, and alleged 
to be within the curtilage of a dwell- 
ing-house of a person named, need not 
also allege that the dwelling-house was 
at that place. Com. v. Barney, 10 
Cush. (Mass.) 478. 

In an indictment, under the Georgia 
statute, for burning an "outhouse," it 
is not necessary to allege whether or 
not the house was in a city, town or 
village, in so far as concerns the legal 
character of the offense. That is a 
matter affecting the punishment only. 
Carter v. State, 106 Ga. 372, 32 S. E. 
345, 71 Am. St. Rep. 262. 

Under a statute defining arson as a 
■wilful and malicious burning of "any 
other house (except the dwelling- 
house) or elsewhere," an indictment 
for burning a church -not located in a 
city, town or village is good. Watt v. 
State, 61 Ga. 66. 

51. An indictment charging "that 
the defendant then and there being in 
the county in which the indictment 
■was found then and there burned" the 
property in question Bufficiently shows 

vol in 



that the crime was committed at a 
place within the jurisdiction of the 
court. People v. Wooley, 44 Cal. 494. 
In State v. Hunt, 190 Mo. 353, 88 S. 
W. 719, the words "then and there" 
together with the words "there sit- 
uate" were held to indicate clearly 
that the offense was committed in the 
county of Douglas, state of Missouri, 
since the caption showed that it was 
filed and the prosecution had in that 
county. 

An allegation that defendant, "late 
of, etc., at the township aforesaid, etc., 
one barn of the property, etc.," there 
situate, is a sufficient allegation of the 
locality of the barn. State v. Price, 11 
N. J. L. 203, 215. 

52. Com. v. Lamb, 1 Gray (Mass.) 
493, where it was held: "The offense 
is here sufficiently charged as to its 
locality, by the previous averment, 
'that Philip Lamb, of Palmer in said 
county, at Palmer aforesaid,' etc., 
taken in connection with the further 
averment, 'and the said barn and out- 
house did then and there voluntarily 
burn and consume.' Where the place 
is material, the place alleged in the 
venue, taken in connection with the 
allegation that the defendant then and 
there'did the act, sufficiently designate 
the locality of the buildings set on 
fire. It is to be taken in the present 
case to be equivalent to an allegation 
that the buildings were situate in Pal- 
mer. This view of the sufficiency of 
such an indictment seems to be directly 
sustained by the case of Rex v. Nap- 
per, 1 Mood. C. C. 44. That case was 
reserved for the opinion of all the 
judges, who held the indictment suffi- 
cient. The principle is, that if it is 
not expressly stated where the build- 
ing is situated, it shall be taken to be 
situated at the place named in the in- 
dictment by way of venue." 
53. Ala. — Stoudenmire v. State, 



ARSON 



15 



ference from averments made. 64 But the indictment need not strictly 
pursue the statute in the use of the words "in which there was at 
the time a human being;" words conveying the same meaning are 
sufficient. 65 And where the statute does not make such fact an ele- 
ment of the offense, it need not be alleged. 68 

Naming Person. — But an indictment or information which avers the 
presence of a human being need not also name the person or per- 
sons in the house at the time of the fire. 67 Where the statute ex- 
pressly provides that building may be "occupied or unoccupied' 
it is of course unnecessary for the indictment to allege who was the 

occupant. 68 

(V.) Ownership, Possession, Etc. — (A.) Necessity. — At common law, it 
was always necessary, in charging arson, to allege the ownership of 
the building burned in another than the defendant. 59 And such is 
the rule generally recognized by the courts of this country where 
not changed by express statutory provision. 60 And for this purpose, 

human being in each, and if he proved 
one it was sufficient." 

54. Lacy v. State, 15 Wis. 13. 

55. Childress v. State, 86 Ala. 77, 5 
So. 775, where the averment was 
''which was occupied by Alfred Phil- 
lips lodged therein." 

So it is not necessary to allege, in 
the language of the statute, that the 
building was "one capable of afford- 
ing shelter to human beings, or appur- 
tenant thereto, or connected with an 
erection so adapted." People v. Russell, 
81 Cal. 616, 23 Pac. 418. See also Peo- 
ple v. Giacamella, 71 Cal. 48, 12 Pac. 
302, where the court said: "The of- 
fense was stated in accordance with 
the language of section 447, Penal Code, 
and was sufficiently stated. As well 
might the provisions of sections 449 to 
452 be held necessary to be stated as 
those of 448. Section 447 declares the 
offense; and the following sections re- 
late to circumstances of its commis- 
sion." 

56. Garrett v. State, 109 Ind. 527, 
10 N. E. 570; State v. Meyers, 9 Wash. 
8, 36 Pac. 1051. 

57. State v. Jones, 171 Mo. 401, 71 
S. W. 680, 94 Am. St. Rep. 7S6; State 
v. Hayes, 78 Mo. 304; State v. Aguila, 
14 Mo. 130. 

58. As in Indiana. — Garrett v. 
State, 109 Ind. 527, 10 N, E. 570. 

59. State v. Keena, 63 Conn. 329, 28 
Atl. 522; State v. Lvon, 12 Conn. 487; 
Rex v. Rickman, 2 East P. C. (Eng.) 
1034. 

60. Ala. — Martha v. State, 26 Ala. 
72; Smoke v. State, 87 Ala. 143, 6 So. 



144 Ala. 85, 40 So. 321; Childress v. 
State, 86 Ala. 77, 5 So. 775. Minn. — 
State v. Grimes, 50 Minn. 123, 52 N. W. 
275. Miss. — Dick v. State, 53 Miss. 
384. 

In Woodford v. People, 62 N. Y. 117, 
20 Am. Rep. 464, the indictment for 
burning several houses, alleged that 
there were, 'within the said dwelling- 
houses, some human being.' This was 
held to import that there was a human 
being in each. The court said: "It 
would be awkward and very unnatural 
to allege that there was only one hu- 
man being in thirty-five dwelling houses. 
Considerable strictness is required in 
criminal pleading, but a strained or 
technical construction should never be 
resorted to, to defeat the reasonable 
import of the language, especially when 
the prisoner has not been prejudiced. 
This construction of the pleading is an 
answer also to the objection of uncer- 
tainty, and also the objection that all 
the allegations specifying the various 
houses, with a human being in each, 
are matters of description of the of- 
fence and must be proved. It follows 
from the views expressed that they are 
matters of aggravation. The offence 
is complete under the allegation as to 
either house. Nothing more was nec- 
essary to charge the crime of arson 
in the first degree, and the other mat- 
ters define the extent of crime. The 
prosecution was entitled to prove the 
extent of the crime, showing that all 
the houses were burned by the act of 
the defendant, and that there was a 



vol. in 



16 



ARSON 



one in possession or occupancy of the premises at the time of the 
offense was deemed the owner, but it was essential that this be 
averred to be other than the accused. 61 And most of the statutes 
do not change this common law rule. 62 



376. Ark. — Mott v. State, 29 Ark. 
147. Cal. — People v. DeWinton, 113 
Cal. 403, 45 Pac. 708, 54 Am. St. Rep. 
357, 33 L. R. A. 394. Ind. — Kruger 
V. State, 135 Ind. 573, 35 N. E. 1019; 
Garrett v. State, 109 Ind. 527, 10 N. E. 
570; Ritchey v. State, 7 Blackf. 168. 
Miss. — Avant v. State, 71 Miss. 78, 13 
So. 881. Mo. — State V. Whitmore, 147 
Mo. 78, 47 S. W. 1068; State v. Wacker, 
16 Mo. App. 417. Neb. — Burger v. 
State, 34 Neb. 397, 51 N. W. 1027. N. 
Y. — McGary v. People, 45 N. Y. 153. 

"An indictment for the statutory of 
fense must aver the ownership of the 
house or other property which was 
burned or set fire to; but the ownership 
to be proved relates to the actual occu- 
pancy, the dominion in fact over the 
thing, not to the nature of the estate 
or claim of the occupant. It is the 
possession, not the tenure or interest in 
the property which should be described. 
This being true, an indictment which, 
following the Code form, charges that 
A. B. wilfully set fire to or burned a 
barn of C. D., imports, not necessarily 
that the fee was in C. D., but that the 
barn was his to occupy, that the pos- 
session was his, without regard to the 
questions as to how he acquired the 
possession or whether he holds under 
another, so long as the property is his 
to possess and enjoy. Peinhardt v. 
State, 161 Ala. 70, 49 So. 831; Adams 
v. State, 62 Ala. 177; Davis v. State, 
52 Ala. 357; May v. State, 85 Ala. 14, 
5 So. 14." Johnson v. State (Ala.), 55 
So. 268. 

In Thomas v. State, 116 Ala. 461, 22 
So. 666, the indictment charged "con- 
spiracy between defendant and one 
Banks 'to unlawfully and wilfully set 
fire to or burn a corn crib, containing 
corn, said corn crib being the property 
of Fayette Allrid,' etc." The defend- 
ant demurred to the indictment for 
failure to aver ownership of the corn 
alleged to have been in the crib. 
The court in disposing of this 
question said: "It is arson in the 
second degTee to burn any corn 
crib whether it contains corn or not, or 
anv corn pen containing corn. — Code of 
1886, §3781; Cook v. State, 83 Ala. 62. 

vol m 



If we hold that the terms 'corn crib 
containing corn' includes a 'corn pen 
containing corn,' in line with the de- 
cision just cited, the indictment would 
be bad, it would seem, on the gTound 
taken by the demurrer that it fails to 
allege the ownership of the corn." 

Where the statute expressly provides 
punishment for setting fire to certain 
buildings, whether such buildings shall 
be in the possession of the offender or 
anv other person, it is not necessary to 
allege that the building burned was in 
the possession of some person named. 
State v. Daniel, 121 N. C. 574, 28 S. E. 
255. 

Ownership of Land, But Not of 
House. — In State v. Thurston, 77 Kan. 
522, 94 Pac. 1011, the court said that 
location answered the purpose. The in- 
formation "in addition to the formal 
parts, charges 'that on or about the 
26th day of November, 1906, in the 
night-time, in said county of Ellis and 
State of Kansas, Leonard Stanton, Phi- 
lip Thurston, Chet Thurston, Frank 
Thurston and Clarence Clarkson did 
then and there unlawfully, feloniously, 
wilfully, and maliciously set fire to and 
burn a certain frame building, to wit, 
a chicken house, situated on the south- 
west quarter of section 11, township 
11, range 17, in Ellis County, Kan., the 
property of R. G. Finch.' " 

61. State v. Keena, 63 Conn. 329, 28 
Atl. 522. 

62. People v. DeWinton, 113 Cal. 
403, 45 Pac. 708, 54 Am. St. Rep. 357, 
33 L. R. A. 394. In this case the in- 
dictment was that the defendant "did 
wilfully, maliciously and feloniously, 
in the night-time, set fire to and burn 
a building, namely, a house there sit- 
uate," etc., "the property of (naming 
the defendant) with the malicious, wil- 
ful and felonious intent then and there 
to destroy said building;" followed by 
"an averment that said house was sit- 
uated in such immediate proximity to 
inhabitated buildings, occupied by hu- 
man beings, as to endanger life, etc., 
and did, then and there, threaten the 
lives of said beings from said fire, etc." 
The court in holding the indictment 
bad said: "Giving effect to the pre- 



ARSON 



17 



Matters Judicially Noticed. —The rule that matters of which judicial 
notice is taken need not be stated in the indictment applies in respect 
of the ownership of the property burned. 83 

Public Buildings. —Sometimes the statute expressly excepts certain 
buildings in respect of which it is not necessary to allege owner- 
ship. 64 

(B.) Sufficiency. — Ordinarily an allegation that the building was 
the property of the occupant in possession in his own right is suffi- 
cient; it is not necessary to allege real ownership." 

Tenant. — In arson the house may be alleged to have been the prop- 
erty of the tenant in possession. 66 



sumption which the law raises, of iden- 
tity of person from identity of name 
(Code Civ. Proc, see. 1963, subd. 25), 
and it will be observed that the in- 
dictment charges the defendant with 
the burning of his own building. . . . 
It describes the building burned as the 
property of the defendant, and fails to 
aver its occupancy or possession by 
any one; and, being silent, the pre- 
sumption is that it was in possession 
and occupancy of the owner. Nor is 
the pleading in any way aided in this 
respect by the averment that the house 
was so situated as that the burning 
thereof endangered the lives of inhab- 
itants of other dwellings. It may be 
that this matter would make the indict- 
ment good as a charge of attempt to 
commit arson, but it does not help out 
the statement of the principal offense." 

63. To describe the property burned 
as the "jail of Wilcox County" is a 
sufficient averment of ownership. 
Sands v. State, 80 Ala. 201. 

64. As in Missouri, where the stat- 
ute excepts houses of public worship, 
colleges, schools and other public 
buildings. State v. Hunt, 190 Mo. 353, 
88 S. W. 719; State v. Johnson, 93 Mo. 
73, 5 S. W. 699. Compare State v. 
Whitmore, 147 Mo. 78, 47 S. W. 1068. 
And see Mott P. State, 29 Ark. 147. 

65. Ala. — Davis v. State, 52 Ala. 
357. Cal. — People v. DeWinton, 113 
Cal. 403, 45 Pac. 708, 54 Am. St. Rep. 
357, 33 L. R. A. 394; People v. Wooley, 
44 Cal. 494. Conn. — State v. Toole, 
29 Conn. 342, 76 Am. Dec. 602. Ind. — 
Wolf v. State, 53 Ind. 30. Ky.— 
Young v. Com., 12 Bush. 243. Mich.— 
People v Fairchild, 48 Mich. 31, 11 N. 
W. 773; Snyder v. People, 26 Mich. 
106, 12 Am. Rep. 302. Neb. — Burger 
v. State, 34 Neb. 397, 51 N. W. 1027. 
N. y. — Woodford v. People, 62 N. Y. 



117, 20 Am. Rep. 464; People v. Tan 
Blarcum, 2 Johns. 105. Vt. — State v. 
Hannett, 54 Vt. 83. 

Hence, in an indictment under the 
statute for arson of a crib, ownership 
is properly laid in one tenant who had 
actual possession and occupancy of the 
premises on which it was situate, under 
contract with the co-tenant, although 
the fee was in the two jointly as ten- 
ants in common. Adams v. State, 62 
Ala. 177. 

An information that the building 
which was burned was "the property 
of ... a corporation," and that it 
was "then and there occupied by" 
certain persons named, is good. Peo- 
ple v. Fong Hong, 120 Cal. 685, 53 Pac. 
265. 

The ownership may be laid in the 
widow of the deceased owner, who had 
occupied and used it since her hus- 
band's death, although there are living 
heirs and no dower had been allotted 
to her. State v. Gailor, 71 N. C. 88, 17 
Am. Rep. 3. 

If the accused is a mere cropper, the 
ownership may be laid in the landlord. 
People v. Smith, 3 How. Pr. (N. Y.) 
226. 

A house consisting of distinct tene- 
ments occupied in severalty need not 
be described in the indictment as the 
dwelling-house of both occupants, since 
such a description implies a joint oc- 
cupancy. State v. Toole, 29 Conn. 342, 
76 Am. Dec. 602. 

Under the California statute in force 
before the adoption of the Penal Code 
it was held that if the arson was com- 
mitted by a tenant in possession, it 
was sufficient to allege the property 
to have been in the landlord. People 
v. Simpson, 50 Cal. 304. 

66. State v. Barret, 2 Penne. (Del.) 
297, 47 Atl. 381; Young v. Com., 12 

vol. in 



ARSON 



Trustee. — As the legal title of property conveyed by deed of trust 
to secure a debt is in the trustee, an indictment for burning such 
property properly lays the ownership thereof in such trustee. 67 

Property in Servant. — Ownership is properly laid in the name of a 
servant who occupied the house, under a contract of hiring which 
bound the owner to. furnish such servant with a house in which to 
live during the term of service. 68 

Ownership in Wife. — The ownership of the property burned may 
be laid in the wife if she is the occupier and the husband is not. 69 



Bush (Ky.) 243. In the latter case 
the house was alleged to have been oc- 
cupied by H. T. as a residence, and the 
court said: "This, for the purposes 
of an indictment for arson, is equiva- 
lent to an averment that it was her 
house. The rule that the ownership of 
the house must be stated does not re- 
quire that the name of the owner in 
fee should be given. It may be al- 
leged to have been the property of the 
tenant in possession, for the tenant 
has a special property in the house 
during his term. There can be no rea- 
Bon for requiring the name of the 
owner of a house charged to have been 
burned by the defendant to be stated 
in the indictment, except to enable the 
accused to prepare for his defense and 
to' plead an acquittal or conviction in 
bar of a second prosecution. These ob- 
jects are accomplished by stating who 
the tenant was at the time of the burn- 
ing." 

In People v. Fisher, 51 Cal. 319, the 
court said: "The house alleged to 
have been burned is described as the 
property of one B. W. Bours. It was 
proven that it was his property, but 
that one Capnrro was in possession of 
it under a lease from Bours; and the 
point is made that, in this respect, 
there is a variance between the indict- 
ment and the proof; in other words, 
that, in an indictment for arson, the 
house should be described as the house 
of the occupant. Arson, as denned by 
the common law, is an offense against 
the security of the habitation, rather 
than against the property which was 
burned (2 Bish. Cr. Law, Sec. 24) ; but 
by the Penal Code, sections four hun- 
dred and forty-seven and four hundred 
and forty-eight, the scope of the defi- 
nition is materially extended. 'Any 
house, edifice, structure, vessel or other 
erection, capable of affording shelter 
for kuman beings,' is a 'building* 



within the meaning of the chapter of 
the Code defining arson, and providing 
for its punishment. It is not necessary 
that the 'house, edifice, structure, ves- 
sel, or other erection,' should have 
been intended for, or have been used 
as, a habitation; but it is sufficient if 
it be 'capable of affording shelter for 
human beings;' and for that reason it 
is not true that the willful and mali- 
cious burning of a building, which was 
not intended, or was not used, as a hab- 
itation, is an offense against the per- 
son rather than the property. It is not 
necessary, therefore, in an indictment 
for arson of the second degree, to de- 
scribe the building as the building of 
the occupant or tenant; but it will be 
sufficient to describe it as the building 
of the owner, though it may have been 
held by a tenant, under a lease from 
the owner." 

67. Lipschitz v. People, 25 Colo. 261, 
53 Pac. 1111. 

68. Davis v. State, 52 Ala. 357, fol- 
lowing People v. Van Blarcum, 2 Johns. 
N. Y.) 105; and citing, 1 Bish. Crim. 
Proc, § 573; 2 Whart. Cr. Law, § 1579. 

In State V. Lyon, 12 Conn. 487, the 
information for burning a shop alleged, 
in one count, that it was the property 
of B and C, as trustees of D, and in 
another, that it was owned by B and 
C jointly; no evidence whatever was 
offered in support of the former alle- 
gation; and in support of the latter, 
the only evidence was the testimony 
of one witness, that at the time the 
shop was burned, he' was employed at 
work therein, by B; and of another 
witness, that at the same time, the 
prisoner, was at work in the shop in 
the employment of E; it was held, that 
this evidence was insufficient to justify 
a conviction of the prisoner, and a 
verdict against him was set aside, as a 
verdict without evidence." 

69. May v. State, 85 Ala. 14, 5 So. 



vol in 



ARSON 



13 



Alternative Allegations. — On an indictment for arson, or for at- 
tempted arson, the ownership of the property, it has been held, may 
be alleged to be in either of several persons named. 70 

Certainty of Allegation. — The allegations as to the ownership of the 
building which the defendant is accused of burning is part of the 
description of the offense; it must be direct and certain, and not 
leave the question to rest upon conjecture or to be made out by ar- 
gument; it must be direct that the building was the property of the 
person who was at the time occupying it in his own right. 71 An alle- 
gation describing the property as "belonging to" a person named is 
a sufficient allegation of ownership. 72 

(VI.) Value of Property. — The value of the building burned is not 
ordinarily an element of the offense of arson, 73 unless expressly so 
made by statute, in which case of course it must be alleged. 74 An 
allegation of value is necessary, however, where the punishment de- 
pends upon the value. 75 

B. Burning With Intent To Defraud Insurer. — 1. Certainty. — 
This being purely a statutory offense, the indictment or information 
must bring the defendant within the terms of the statute by alleging 
the acts which are charged as constituting the offense with such cer- 
tainty as to identify and distinguish it from other transactions, and 
that he may know what offense he is called upon to answer. 78 



14, an indictment for burning a corn 
pen containing corn, where the wife 
had raised and gathered the corn, and 
had built the pen on land belonging 
to her husband, but on -which she re- 
sided, he being absent in another 
estate. 

Under various modern statutes it is 
held, contrary to the rule at common 
law (Snyder v. People, 26 Mich. 106, 
12 Am. Eep. 302), that a husband may 
be guilty of arson in burning a house 
owned by his wife. Thus in State v. 
Shaw, 79 Kan. 396, 100 Pac. 78, 131 
Am. St. Eep. 298, 21 L. E. A. (N. S.) 
27, it was held that the wife was "an- 
other" within the meaning of the 
"house of another" in the statute, 
and that the husband could be con- 
victed of arson in burning her prop- 
erty. See also: Ind. — Garrett v. 
State, 109 Ind. 527, 10 N. E. 570. 
Ohio. — Hutchinson V. State, 28 Ohio 
C. C. 595. Wis. — Kopcyznski v. State, 
137 Wis. 358, 118 N. W. 863. 

70. Brown v. State, 79 Ala. 51. 

71. People v. Myers, 20 Cal. 76, 
where an indictment was held bad 
which alleged that "said dwelling- 
house was then and there the property 
of one Lemon, and was then and there 
the dwelling-house of one Chinaman, a 



human being, whose real name is to 
the jurors unknown." 

72. Com. v. Hamilton, 15 Gray 
(Mass.) 480. 

73. James v. State, 104 Ala. 20, 16 
So. 94; Brown V. State, 52 Ala. 345. 

74. Clark v . People, 2 111. 117, where 
the court said: "The indictment does 
not allege the value of the building 
charged to have been burned. This 
would probably be unnecessary at com- 
mon law, as a fine formed no part of 
the punishment for the offense. The 
statute, however, under which the in- 
dictment is found, has changed the 
common law in this respect; a fine equal 
in value to the property burned, is im- 
posed as part of the punishment for 
the offense. The indictment, then, 
should have charged the value of the 
property destroyed, otherwise it could 
not properly have been inquired into 
by the jury. It would form no part of 
the issue which they were sworn to 
try. In this respect, then, the indict- 
ment is defective; and the Court erred 
in overruling the motion -to quash it, 
and in rendering judgment upon the 
verdict of the jury." See also Bit- 
chev V. State, 7 Blackf. (Ind.) 168. 

76. State v. Temple, 12 Me. 214; 

Com. v. Hamilton, 15 Gray (Mass.) 480. 

76. Heard v. State, 81 Ala. 55, 1 So. 

vol. in 



20 



ARSON 



2 Ownership of Property. — An allegation of ownership is not 
necessary unless the statute expressly makes ownership an element 

of the offense." , . 

3. Intent To Defraud. — The intent to defraud the insurer must 

1)6 allesred 

4 Fact 'of Insurance. — The fact that the property was insured 
against fire must be alleged. 79 It is not necessary to set forth the 
policy of insurance according to its tenor. 80 Nor is it necessary to 
allege that insured held- a valid policy, or any policy at all. 81 

Failure to allege the fact of insurance should be taken advantage of be- 
fore verdict; and an information, although defective in this respect, 
if otherwise 'sufficient, will be held sufficient after verdict to support 
sentence against a motion in arrest of judgment. 82 



640; Carncross v. People, 1 N. T. Crim. 

If the specific acts alleged show the 
commission of the offense, the fact that 
it is also designated as arson is not 
material (People v. Morley, 8 Cal. App. 
372, 97 Pac. 84) ; nor the failure to in- 
sert the statutory appellation of the 
crime in accordance with the form pre- 
scribed by statute (People v. Phipps, 
39 Cal. 326). 

Form of Information for Burning 
Insured Property. — " That said parties 
(naming them) 'on the 3d day of Au- 
gust, 1907, at and in the county of Los 
Angeles, state of California, did wil- 
fully, unlawfully, and feloniously and 
maliciously burn, injure, and destroy 
certain property, to wit, certain house- 
hold furniture and other personal ef- 
fects then and there in house (prem- 
ises described), which was then and 
there the property of Henry Sander- 
son, and was then and there insured 
against loss and damage by fire by the 
Eoyal Insurance Company of Liver- 
pool, a corporation, with intent then 
and thereby to defraud, prejudice, and 
damage the said Eoyal Insurance Com- 
pany of Liverpool, a corporation; con- 
trary,' etc." People v. Morley, 8 Cal. 
App. 372, 97 Pac. 84. 

77. United States V. McBride, 7 
Mackey (D. C.) 371. 

78. Heard v. State, 81 Ala. 55, 1 So. 
640- Martin t?. State, 29 Ala. 30; Mai 
v People, 224 HI. 414, 79 N. E. 633; 
Staaden V. People, 82 111. 432, 25 Am. 
Eep. 333; McDonald v. People, 47 111. 
533. 

The intent to defraud the insurer is 
quite as essential to constitute the of- 
fense as the intent to destroy the in- 



sured building by fire. See People v. 
Trim, 39 Cal. 75. 

Knowledge of Insurance. — An alle- 
gation of an intent to injure the in- 
surer is a sufficient allegation of the 
defendant's knowledge that the prop- 
erty was insured. Com. t?. Goldstein, 
114 Mass. 272. 

79. Ala. — Heard v. State, 81 Ala. 
55, 1 So. 640; Martin v. State, 29 Ala. 
30. Cal. — People v. Hughes, 29 Cal. 
257. 111. — Staaden v. People, 82 111. 
432, 25 Am. Eep. 333. N. Y. — People 
v. Henderson, 1 Park. Crim. 560. Com- 
pare United States v. McBride, 7 Mac- 
key (D. C.) 371. 

In Martin V. State, 29 Ala. 30, the 
court said: "The statute aims to pun- 
ish the wilful burning of any building, 
or other property, which is at the time 
insured against fire. It may be true, 
as charged in the indictment, that the 
property was insured, and yet it may 
also be true that it was not insured 
against fire. Everything in the indict- 
ment may be true, and nevertheless the 
offense condemned by the statute may 
not have been committed, for the fact 
that the insurance was against fire is 
indispensable to constitute the of- 
fense." 

80. Com. v. Goldstein, 114 Mass. 272. 

81. McDonald v. People, 47 111. 533. 

82. State r. Jessup, 42 Kan. 422, 22 
Pac. 627, where the court said: "The 
contention is, that the following words 
of said § 57, 'which shall at the time be 
insured against loss or damage by fire,' 
are omitted from the information, and 
therefore that it is fatally defective. 
Upon a motion in arrest, we do not 
think the objection well taken. It was 
necessary at the trial, under the alle- 



vol m 



ABSON 



21 



5. Description of Insurer. — An information or indictment for burn- 
ing an insured building with intent to defraud the insurer should al- 
lege that the insurer is a corporation, if such be the fact, or that 
it is a copartnership, if such be the fact, composed of certain persons, 
giving their names, and that the act was done with intent to injure 
and defraud them in their associate capacity. 83 But a description of 
the insurer by a name apparently indicating it to be a corporation 
need not affirmatively aver its corporate existence, nor whether it is 
a domestic or foreign corporation. 84 

C. Attempts To Commit Arson. — The offense of attempt to com- 
mit arson, being usually a statutory one, may be sufficiently charged 
in the language of the statute. 85 Where the statute defining the 
attempt to commit arson contemplates the employment of some physi- 



gations of the information, to prove 
that the barn was insured against loss 
or damage by fire, in order to establish 
the intent of the defendant to defraud 
the insurers. The insurers were named 
as the German Insurance Company, of 
Freeport, Illinois, and the Fireman's 
Fund Insurance Company, of San 
Francisco, California. So the testi- 
mony that was presented, and was nec- 
essarily presented under the informa- 
tion, was the same as if the omitted 
words were embraced therein. There 
could be no intent to defraud the in- 
surers in burning the barn described 
in the information, unless at the time 
of the fire the property was insured 
against loss or damage, by the com- 
panies named. We think that the aver- 
ments of the information as made, were 
in legal effect equivalent to a charge 
that the barn, at the time of its de- 
struction, was insured against loss or 
damage by fire. It is a principle of 
pleading that whatever is included in, 
or necessarily implied from, an express 
allegation, need not be otherwise 
averred." 

83. People v. Schwartz, 32 Cal. 160 
(holding further that the mere allega- 
tion of the insurer as a company 
amounts in a legal sense to an entire 
absence of any allegation as to the 
party intended to be injured or de- 
frauded) ; Staaden v. People, 82 111. 
432, 25 Am. Rep. 333. 

An allegation that the insurer is a 
corporation having a right to do busi- 
ness is unnecessary, where the la^i 
recognizes the legality of insurance by 
individuals and by unincorporated as- 
sociations. People v. Jones, 24 Mich. 
215. 

84. Johnson v. State, 65 Ind. 204. 



An allegation that defendant, at a 
time and place named, burned cer- 
tain property "being then and there 
insured," in a corporation, "thereto- 
fore duly established," sufficiently al- 
leges an insurance by a corporation 
legally existing and bound by the policy 
at the time of the fire. Com. v. Gold- 
stein, 114 Mass. 272, holding further 
that it is unnecessary to allege whether 
the insurer, a corporation, is a domestic 
corporation, or a foreign corporation, 
that it has complied with the stat- 
utes relating to foreign insurance com- 
panies. 

85. People v. Giacamella, 71 Cal. 48, 
12 Pac. 302-. 

An indictment charging that ac- 
cused in the night-time did unlaw- 
fully, wilfully and maliciously set fire 
to and attempt to burn a certain build- 
ing owned by A and occupied by B 
as a dwelling house, sufficiently charges 
an attempt to commit arson. Kin- 
chien v. State, 50 Fla. 102, 39 So. 467. 
The court said: "The statute de- 
nounces 'whoever wilfully and ma- 
liciously burns the dwelling house or 
any building adjoining such dwelling 
house, or wilfully and maliciously sets 
fire to any building, by the burning 
whereof such dwelling house is 
burned.' — sec. 2426 Rev. Stat. 1892 — 
and the contention of the plaintiff in 
error is that the pleader confounded 
the words 'set fire to' and 'burn.' We 
need not pass upon this distinction. 
The count does not charge the con- 
summated crime, but the attempt to 
commit the crime and the overt act 
of 'setting fire' that accompanied 
the attempt to 'burn.' The count is 
needlessly prolix and assumed a great- 
er burden of proof than might have 



vol in 



22' 



ARSON 



cal means, and not merely the soliciting of a third person to set the 
fire the indictment or information must set out the means employed ; 
it is not enough merely to allege the soliciting. 88 

Joinder of Counts. — A count charging the defendant with attempt 
to burn another person's house may properly be joined in the same 
indictment with a count charging the defendant with setting fire 
to his own property with intent to defraud an insurance company, 
where the offenses grow out of the same act ; and the fact that dif- 



boen prudent, but it fully apprized 
the defendant of the accusation 
against hsr and the denial of the mo- 
tion to quash will not be held error." 
In Howard v. State, 109 Ga. 137, 
34 S. E. 330, where the charge was 
an attempt to commit arson, the court 
in holding the indictment good as 
against the objection that it did not 
charge a crime under the laws of 
Georgia, said: "Section 136 of the 
Penal Code defines arson as 'the ma- 
licious and wilful burning of the 
house or outhouse of another.' The 
next 'section declares that 'the wil- 
ful and malicious burning, or setting 
fire to, or attempting to burn, a house 
in a city, town or village, whether the 
house be the property of the perpe- 
trator or of another, shall be pun- 
ished' as a capital offense. It will 
thus be seen that the act of 'setting 
fire to,' or the act of 'attempting to 
burn,' a house in a city, town or vil- 
lage, if wilfully and maliciously com- 
mitted, is made by law an offense 
punishable in the same manner as the 
wilful and malicious burning of such 
a house. In the first count of the in- 
dictment both Ford and Howard are 
accused of setting fire to and attempt- 
ing to burn the jail house in Patter- 
son. Logically, and from the stand- 
point of common sense, the charge 
thus made against these persons really 
meant that they set fire to the house 
and in this manner attempted to burn 
it. In the second count Ford was 
charged with setting fire to and at- 
tempting to burn the house, and this 
count contained the further averment 
that Howard procured, counseled, and 
commanded Ford 'to commit said 
crime as aforesaid.' The plain mean- 
ing of this is, that Howard incited 
Ford to set fire to and attempt to 
burn the jail. Inasmuch as setting 
fire to this house was a distinct of- 



fense, and as it was an act the do- 
ing of which could be incited by an- 
other, we have no difficulty in hold- 
ing that the indictment was good. It 
is true that no section of the Penal 
Code may contain the phrase 'attempt 
to commit arson,' but, as we have 
shown, section 137 does make punish- 
able the act either of feloniously set- 
ting fire to, or attempting to burn, 
a house in a city, town, or village, the 
doing of either of which necessarily 
constitutes an attempt to commit ar- 
son. So far, therefore, as the first 
three grounds of the demurrer are 
concerned, it deals with a mere play 
upon words and is entirely without 
merit." 

Under a statute providing for the 
punishment of one who "attempts 
to commit an offense prohibited by 
law," and in such attempt does any 
act toward the commission of such of- 
fense, when the offense alleged is an 
attempt to set fire to property with 
intent to injure the insurer, and the 
offense is to be made out by show- 
ing a preparation and a solicitation 
of someone else to set the fire, the 
solicitation must be alleged as one 
of the overt acts. Com. v. Peaslee, 
177 Mass. 267, 59 N. E. 55. 

86. McDade v. People, 29 Mich. 50, 
holding also that "the additional al- 
legation in an information charging 
such an attempt by solicitation, that 
the defendant also furnished oil and 
matches to the person solicited to do 
the firing, does not help to fill up 
the measure required by the statute, 
and the charge would be equally as 
valid without it." 

Under an indictment for arson, the 
defendant can be convicted of an at- 
tempt to commit arson. Benbow v. 
State, 128 Ala. 1, 29 So. 553. See also 
Young V. Com., 12 Bush (Ky.) 243; 
People v. Long, 2 Edm. Sel. Cas. (N. 
Y.) 129. 



VoL in 



ARSON 



23 



ferent penalties are attached to the two offenses is immaterial. 87 
D. Conspiracy To Commit Arson. — "When the charge is a con- 
spiracy to commit arson, the indictment must allege felonious intent 
in respect of the fact of the burning; it is not enough to allege 
merely a felonious conspiracy. 88 A count in an indictment charging 
that the defendants agreed to burn the property of a certain person, 
and that in pursuance of that agreement did burn it, is not double. 89 
III. VARIANCE BETWEEN ALLEGATIONS AND PROOF.— 
A. In General. — Of course, as in all criminal cases, the proof of the 
essential elements of the offense of arson, or burning with intent to 
defraud the insurer, must correspond with the allegation of such ele- 



87. Posey v. United States, 26 App. 
Cas. (D. C.) 302, where the court 
said: "We are clearly of the opinion 
that the counts were properly joined, 
and that, had separate indictments 
been returned, the court could have 
properly consolidated them. The grava- 
men of both offenses is burning, or 
attempting to burn. Such acts in the 
District of Columbia are statutory of- 
fenses, and may be set out as sep- 
arate counts in the same indictment. 
It is difficult to state a case where 
two offenses grow out of the same 
transaction if the present case does 
not disclose one. The mere fact that 
the penalties are not the same is not 
controlling. The penalty provided by 
section 820 is imprisonment for not 
less than one year nor more than ten 
years, while, under section 821, the 
penalty is imprisonment for not more 
than fifteen years." Following Cor- 
tola v. United States, 24 App. Cas. 
(D. C.) 229. 

88* Lipschitz v. People, 25 Colo. 
261, 53 Pac. 1111. In this case the 
indictment charged that the de- 
fendants " 'feloniously, wilfully and 
maliciously did conspire, co-operate 
and agree together to burn and cause 
to be burned a certain residence build- 
ing of the property of Peter Winne, 
trustee, situate ... in the town of 
Colfax, in said Arapahoe county, in 
the state of Colorado.' " In holding 
that the indictment was insufficient, 
the court said: "The mere burning 
of the house of another is not arson 
at the common law or under our stat- 
ute. It is only the wilful and ma- 
licious burning that constitutes the 
crime. In this all the authorities 
agree. State v. Carroll, 85 Iowa, 1. 
The attorney general recognizes this, 



and so would have us decide that the 
word 'felonious' characterizes the con- 
spiracy, and the words 'wilful and ma- 
licious' qualify its object, viz: the 
burning; but no rule of construction 
that we know of will permit such an 
arbitrary transposition, and forced 
interpretation, of words as this de- 
cision would require. All three f 
these words evidently were intended 
by the pleader to apply to the con- 
spiracy; and, taking them in their 
connection, we can come to no other 
conclusion than that they do applv to 
the conspiracy, and not to the arson. 
It follows that this indictment is not 
merely faulty in form, but fatally 
defective in substance in that it fails 
to aver an unlawful act as the object 
of the conspiracy. It is good neither 
under our statute nor at the common 
law." 

89. "The conspiracy to burn is 
merged in the consummated act of 
burning, and so the offense charged 
is that of arson only, and not the in- 
dependent offenses of a conspiracy to 
commit arson, and arson." Hoyt v. 
People, 140 111. 588, 30 N. E. 315, 16 
L. E. A. 597. 

An information charging defendant 
with aiding and abetting his wife in 
the commission of arson is not insuffi- 
cient in that it attempts to charge 
a conspiracy by a husband and wife. 
State v. Mann, 39 Wash. 144, 81 Pac. 
561, where the court said: "The in- 
formation charges a consummated of- 
fense, not a conspiracy to commit an 
offense. And while it may be true 
that a husband and wife cannot be 
convicted of having conspired together 
to commit an offense, yet if they com- 
mit an indictable offense, although 
the offense is the result of a con- 



vol m 



24 



ABSON 



ments. 90 Thus the character of the building must be proved as laid.' 



spiracy on their part, they can be 
tried and convicted for the consum- 
mated offense." 

90. Under an indictment for wil- 
fully burning insured, property with 
intent to defraud the insurer, proof 
that defendant burned the property 
by the owner's procurement to en- 
able him to obtain the insurance will 
not support a conviction. Heard v. 
State, 81 Ala. 55, 1 So. 640, following 
Com. v. Makely, 131 Mass. 421. 

In People v. Davis, 135 Cal. 162, 67 
Pac. 59, a prosecution for arson in 
burning a barn, the evidence showed 
that the barn was located at the place 
'alleged, and that it was generally 
known by the name alleged; and it 
was held that the identification of 
the barn burned was sufficiently es- 
tablished, though there was no proof 
of the ownership of the barn as al- 
leged. 

In People v. Fong Hong, 120 Cal. 
685,' 53 Pac. 265, an information for 
arson, there was evidence that de- 
fendant had in the building some prop- 
erty which was insured, and defendant 
.asked the court to charge the jury 
that "if the intent was to defraud the 
insurance company the defendant could 
not be convicted under this informa- 
tion," which was refused. In hold- 
ing this to be correct, the court said: 
"The proposition contended for seems 
te be that a man may feloniously 
burn a building not his own, and yet 
not be guilty of arson if he does it 
with intent to defraud an insurance 
company; and that in such case he 
must be prosecuted under the pro- 
visions of section 548 of the Penal 
Code. But this is not the law. If 
certain acts constitute arson in all 
other respects, the crime committed 
is arson whether the motive be gain, 
or revenge, or any other kind of ma- 
licious mischief. The main purpose 
of section 548 is to make criminal 
eertain wrongful and malicious acts 
which do not constitute arson. Arson 
can only be committed on a 'build- 
ing; ' section 548 does not mention 
building, and the crimes there created 
may be committed upon any kind of 
'property.' Arson cannot be commit- 
ed on a building by one who exclu- 
sively owns and occupies it, notwith- 
standing the fact that it is insured; 

vol m 



but burning his own insured building 
would be a crime under section 548. 
That section makes it a crime to 
either burn or 'in any other manner' 
injure 'any property' insured against 
damage by fire, or by 'any other 
casualty.' Its purpose is to prevent 
the 'fraudulent destruction of prop- 
erty insured.' It does not deal with 
'arson,' and does not undertake to 
change the character of that crime. 
Arson is the same crime that it was 
before section 548 was enacted. 
Whether a party might commit guilty 
acts under such peculiar circumstances 
as would subject him to prosecution 
for either arson or the crime created 
by said last-named section of the code 
is a question now calling for con- 
sideration." 

Proof that the policy of insurance 
on the property burned was payable to 
the mortgagee is not inconsistent with 
the allegation that the insurer in- 
sured the property to the accused. 
State v. Byrne, 45 Conn. 273. 

A variance between the name of the 
insurance company as charged and as 
proved on the trial is no ground for 
arrest of judgment under the pro- 
visions of Cr. Pr. Act, §§ 289, 442. 
People v. Hughes, 29 Cal. 257. 

91. In State V. Tennery, 9 Iowa 436, 
the indictment contained two counts. 
The first charged "that defendant 
did, in a certain store of one Hervey, 
situate, &c, on, &c, . . . with in- 
tent then and there feloniously, &c, to 
cause the said store of said Hervey 
to be burnt, &c. The second charges 
that the fire was set in a room with- 
in a store building of the value, &c, 
of one Hervey, with intent then and 
there to cause, &c. Upon the trial it 
was shown that Hervey was the owner 
in fee of the premises named; that 
there were four rooms in the house, 
two of which were occupied by the 
said Hervey, and two by one Pease, 
under a lease from Hervey; that there 
was no communication between the 
rooms occupied by said Pease, that 
the said building was frame, and the 
fire was set in one of the rooms oc- 
cupied by the tenants. Defendant 
claimed that the testimony did not 
sustain the indictment, in that the 
fire was set in the room occupied by 
Pease, and therefore not in the storo 



ARSON 



25 



building of Hervey, as charged. An 
instruction to this eti'ect was refused." 
The court said: "If the case stood 
alone upon the first count, there might 
be great doubt whether the proof 
sustained the charges. Giving to the 
word store, as there used, its usual 
signification, the reasonable construc- 
tion of the pleading would be that the 
fire was set in the store — that is, the 
store room occupied by Hervey. And 
this would not be sustained by proof 
that it was set in the store of an- 
other, in the same building. Conced- 
ing the rule, however, contended for by 
appellant, that under our statute this 
is an offense, as at common law, to 
the possession, we think the language 
of the second count meets the proof. 
It is there charged that the fire was 
applied in a room within a store build- 
ing of said Hervey, and not in his 
store. If Hervey owned the building 
and occupied a part of the same, and 
the fire was set in a room of the same 
building, occupied by another, with 
intent to burn the store of such own- 
er, the pleader would be justified in 
stating the charge, as was done in 
the case. It could make no differ- 
ence that the material and necessary 
consequence of the act, was to in- 
jure and to destroy at the same time, 
the possession of the tenant." 

On a charge of burning a corn-crib, 
proof of the burning of a barn or 
frame building of two stories, with 
shingle roof and sheds all around, in 
which were kept wagons, stock, fod- 
der, farming utensils and other things 
used about the plantation, and in 
which was one room partitioned off 
as a corn-crib is a fatal variance. 
Jackson v. State, 145 Ala. 54, 40 So. 
979. 

In Thomas v. State, 116 Ala. 461, 
22 So. 666, an indictment charging 
conspiracy "to unlawfully and wil- 
fully set fire to or burn a corn-crib 
containing corn . . . the evidence 
shows that it was a cabin for the 
habitation of tenants, with chimney, 
doors and windows and all the other 
characteristics of a cabin or dwelling 
house, that it has always been used 
for human habitation up to within a 
month or two before the attempt to 
burn it, and that being then untenant- 
ed, the owner deposited there some 
corn and forage which continued in 
the building up to the time of the al- 



leged offense." The court in holding 
that there was a fatal variance, said: 
"The words 'corn-crib' and 'corn-pen' 
have well understood and definite 
meanings. Everybody understands what 
a corn-crib is and what a corn- 
pen is, and nobody would speak of 
a dwelling house of even the humble 
class, called cabins, as either a corn- 
pen or corn-crib though it should be 
temporarily used for the storage of 
corn. And we conclude that the 
evidence did not sustain the averment 
of the indictment that defendant and 
Banks conspired to burn a corn-crib 
containing corn; there was a fatal 
variance between the allegation and 
the proof." 

An allegation describing the build- 
ing burned as an outbuilding adjoin- 
ing a dwelling house is not supported 
by proof that the building was near 
to but did not touch the dwelling 
house. State V. Downs, 59 N. H. 320. 
Under an allegation describing the 
building as an outhouse used as a 
storehouse, proof that it was an old 
building located at a crossroads and 
occupied as a storehouse, but not en- 
closed or used in any way as a dwell- 
ing house, is a fatal variance. State 
v. Koper, 88 N. C. 656, where the 
court said: "Now, an outhouse has 
a technical meaning. The house oc- 
cupied by Dowd, as a store, was not 
an outhouse in the meaning of the 
law. An outhouse is one that be- 
longs to a dwelling house, and is in 
some respects parcel of such dwelling 
house and situated within the cur- 
tilage. Such was the meaning of the 
term at common law, and under the 
English statutes, similar to ours, in 
relation to the burning of houses." 

An allegation describing the property 
burned as an "outhouse" is supported 
by proof that the house was a freight 
car detached from the wheels and 
placed upon permanent posts near a 
railway track at a station, and to 
which a platform had been attached. 
Carter v. State, 106 Ga. 372, 32 S. 
E. 345, 71 Am. St. Kep. 262. The 
court said: "There was no evidence 
showing that the Southern Eailway 
Company had or owned- any other 
building at this station; and counsel 
for the accused thereupon insisted that 
the house in question could not, in 
legal contemplation, be an 'outhouse,' 
and accordingly, that there was a fatal 

vol. m 



26 



ARSON 



B. Ownership. — So, too, as a general rule, the ownership of the 
building burned must be proved as laid ; 92 although not all variances 



variance between the allegations of 
the indictment and the proof. It is 
true that the word 'outhouse' pri- 
marily means a building adjacent to a 
dwelling house and subservient there- 
to, but distinct from the mansion it- 
self. See 2 Bouv. Law. Die. 341; 
Black's Law Die 859; Anderson's 
Law Die. 515. After careful consid- 
eration, however, we have reached the 
conclusion that the word 'outhouse' 
as used in sections 136, 141 and 142 
of our Penal Code, as applied to a 
structure not located within a city 
town or village, is intended to em- 
brace a house of any description which 
is not a dwelling house. . . . The 
status of a railway warehouse, lo- 
cated elsewhere than in a city, town 
or village, cannot be legally different 
from that of a country church simi- 
larly situated. That all houses other 
than dwelling houses, thus located, 
were intended to be regarded as 'out- 
houses,' seems manifest from the pro- 
visions of section 142 of the Penal 
Code, which declares that 'setting fire 
to an outhouse of another, as de- 
scribed in the preceding section, shall 
be punished,' etc.; for unless this 
meaning be given to the word 'out- 
house' as used in section 142, we 
would have no penalty whatever for 
the offense of setting fire to a house 
of the kind described in the present 
indictment. The truth is, the prefix 
'out' was totally unnecessary in this 
connection, except for the exclusive 
purpose of distinguishing dwelling 
houses from other houses; but the use 
thereof should not, we think, be given 
the effect of defeating the legislative 
will, which clearly was to include 
buildings other than those which 
would ordinarily be understood as fall- 
ing within the class designated by 
the word 'outhouse.' " 

Where the indictment describing the 
property as a millhouse refers to it 
as personal property, proof that the 
building was real estate and that it 
was a grist mill or mill building, if 
a variance at all, is not fatal. Ford 
V. State, 112 Ind. 373, 14 N. E. 241. 

92. Ala. — Boles v. State, 46 Ala. 
204; Graham v. State, 40 Ala. 659; 
Martha v. State, 26 Ala. 72. Conn.— 

vol. m 



State v. Lyon, 12 Conn. 487. Fla. — 
Hicks v. State, 43 Fla. 171, 29 So. 
631. Ga. — Weaver v. State, 116 Ga. 
550, 42 S. E. 745. Me. — State v. Tay- 
lor, 45 Me. 322. Mass. — Com. v. Wade, 
17 Pick. 395. Miss. — Morris v. State 
8 So. 295. Mo. — State v. Moore, 61 
Mo. 276. Neb. — Burger v. State, 34 
Neb. 397, 51 N. W. 1027. N. J.— 
State v. Fish, 27 N. J. L. 323. N. T. 
McGary v. People, 45 N. Y. 153; Hen- 
nessey v. People, 21 How. Pr. 239; 
People v. Gates, 15 Wend. 159. Wis. 
Carter v. State, 20 Wis. 647. 

Under an indictment laying the 
ownership of the store alleged to have 
been burned in a certain corporation, 
proof that the house set fire to was 
the property of such corporation and 
was used by it as a general mer- 
chandise storehouse will support a con- 
viction. Hannigan v. State, 131 Ala. 
29, 31 So. 89. 

In People v. Butler, 62 App. Div. 
508, 71 N. Y. Supp. 129, where the 
defendant was charged with burning 
his barn, -which was insured, with in- 
tent to prejudice the insurer, it was 
held that proof that he burned his 
wife's barn was a fatal variance and 
not sufficient on which to convict. 

In Com. v. Elder, 172 Mass. 187, 51 
N. E. 975, the building was described 
as the " 'barn of the property of onr 
S. L. W. then and there situate and 
being within the curtilage of the dwell- 
ing house of him, the said S. L. W. 
there also situate; ' and the proof is that 
the barn was the property of S. L. 
W., situated within the curtilage of 
a dwelling house owned by him, but in 
which he had never dwelt, and which 
at the time of the burning was occu- 
pied by his tenant who dwelt with his 
family in the house and occupied the 
barn and the curtilage." In holding 
that there was no variance, the court 
said: "Whether there was a vari- 
ance depends upon whether the words 
'within the curtilage of the dwelling 
house of her, the said Sarah L. 
Wright,' are an averment that the 
barn was within the curtilage of a 
dwelling house in which Sarah L. 
Wright then lived. There is no rea- 
son why they must be so construed. 



ARSON 



27 



in this connection are regarded as fatal. 98 Where the ownership of the 
property is alleged to be in either of two or more persons, proof 
that it was owned by such persons and another jointly is not a ma- 



The offense is statutory, and while the 
facts that the barn was the barn of 
another and that it was within the 
curtilage of a dwelling house must be 
averred, there is no statute require- 
ment that the dwelling house must be 
alleged to have been the dwelling 
house of the person who there dwelt. 
On the contrary, the offense is one in 
relation to real estate, and the pro- 
visions of Pub. Sts. c. 214, § 14, are 
applicable, under which in such prose- 
cutions it is enough if it is proved 
on the trial that when the offense 
was committed 'either the actual or 
constructive possession or the general 
or special property' was in the per- 
son alleged to be the owner." 

Under an allegation of ownership 
in the defendant, proof that the build- 
ing was owned by the defendant, bul. 
stood on land owned by a third per- 
son who collected rent for the land 
from the defendant, is no variance. 
Com. v. Wesley, 166 Mass. 248, 44 N. 
E. 228. 

Proof that the property burned was 
that of a co-partnership of which the 
defendant was a member, and was in- 
sured as such, is not a variance from 
an allegation of ownership in the de- 
fendant. Com. v. Goldstein, 114 Mass. 
272. The court said: "It is not ma- 
terial in whose name the goods were 
insured; the crime consisting in burn- 
ing them with intent to injure the in- 
surer, whether the defendant or any 
other person owned or procured them 
to be insured. It is true that the in- 
dictment alleges the goods to be the 
property of Philip Goldstein, and the 
proof was that they belonged to Davis 
& Company. But the statute provides 
that in prosecution of offences in re- 
lation to or affecting real or personal 
estate, it shall be sufficient and shall 
not be deemed a variance, if it is 
proved on the trial that at the time 
when the offence was committed, either 
the actual or constructive possession, 
or the general or special property in 
the whole or any part of such real or 
personal estate was in the person or 
community alleged to be the owner 
thereof. Gen. Sts. c. 172, § 12. As 
it was proved that Goldstein was a 
member of the firm of Davis k Com- 



pany, this case falls within the 
statute." 

An allegation of burning the dwell- 
ing house of another is not sustained 
when the proof is that the person 
charged to have been the owner never 
dwelt in or occupied the building. 
People v. Handley, 93 Mich. 46, 52 
N. W. 1032. Compare People v. Mix, 
149 Mich. 260, 112 N. W. 907. 

In People v. Eaton, 59 Mich. 559, 26 
N. W. 702, "on the argument it was 
urged, although no assignment of error 
was based thereon, that the convic- 
tion was wrong, because the informa- 
tion charged the property as the prop- 
erty of Melissa E. Gleason and Ida 
May White, and it is claimed that 
the proof shows that it was the prop- 
erty of Ida May White. The proof 
shows that prior to 1861, the legal 
title and possession were in Salem C. 
Gleason, the husband of Melissa E. 
Gleason, and father of Ida May White. 
Gleason enlisted in the army in 1861, 
and went into the war of the rebellion 
and was reported to have died in the 
army. He has never been seen alive 
or heard from by his family since. 
Ida May was his only child and heir. 
The legal title was therefore cast upon 
Ida May by descent, subject to Mrs. 
Gleason 's dower interest. The de- 
scription of ownership in the informa- 
tion is therefore correct." 

Under an information for burning 
the dwelling house of a person named, 
proof that part of the second story 
of the building was occupied by such 
person and his family as their dwell- 
ing, and that a portion of the lower 
story was used as a drug store, does 
not constitute a variance. State v. 
Jones, 171 Mo. 401, 71 S. W. 6S0, 94 
Am. St. Kep. 786. 

93. Where the property is de- 
scribed as the property of, and in the 
possession of, a certain person, proof 
that the actual possession was in a 
tenant of such person is not a ma- 
terial variance. Harvey V. State, 67 
Ga. 639. 

It is not necessary to prove the 
ownership as alleged in the indict- 
ment, provided the house is otherwise 
sufficiently described for purposes of 
identification and is otherwise identi- 



vol m 



28 



ARSON 



terial variance. 9 * In some of the states a statute specifically pro- 
vides that in the prosecution of any offense affecting real property, 
it shall not be deemed a variance if it be proved on the trial that 
any part of such estate was in the person alleged in the indictment 
to be the owner thereof. 95 

C. Location of Property. — Where the location of the property is 
matter of local description, any variance between the description in 
the indictment and the evidence is fatal. 96 

D. Value op Property. • — It is not necessary that the prosecution 
prove the property to have been of the exact value alleged in the 
indictment. 97 

IV. INSTRUCTIONS. — The instructions denning the offense 
should state all the essential elements. 98 



fied by the evidence. People v. Lav- 
erty, 9 Cal. App. 756, 100 Pac. 899. 

In State V. Kroscher, 24 Wis. 64, 
it was alleged that the building was 
occupied by the accused and owned by 
another, in consequence whereof the 
dwelling house of a third person was 
burned. Tt was held that proof that 
the building set on fire was owned by 
the person named, the lower part oc- 
cupied by defendant as a shop, and 
the upper part by a fourth _ person, 
as a dwelling, was not a material vari- 
ance. 

94. Brown v. State, 79 Ala. 51. 

95. Com. v. Harvey, 10 Met. 
(Mass.) 421, where the proof was that 
the alleged owner was joint lessee 
with another person. See also State 
v. Grimes, 50 Minn. 123, 52 N. W. 
275. 

In Kentucky a statute provides that 
if the offense involve an injury to prop- 
erty and be described in other respects 
with sufficient certainty to identify 
the act, an erroneous allegation as to 
the ownership of the property is not 
material. And in Com. v. Napier, 27 
Ky. 131, 84 S. W. 536, where the indict- 
ment alleged the property to be in 
C, it was held that proof that he only 
had possession or control of it, while 
the title to it and the adjoining house, 
where he lived with his wife, be- 
longed to her, was not a variance. 

96. People v. Slater, 5 Hill (N. T.) 
401, where the building was described 
in sixth ward, and the proof was that 
it was in the fifth. See also Kex v. 
■Woodward, Moody Cr. Cas. (Eng.) 
323. 

97. Cunningham V. State, 117 Ala. 
59, 65, 23 So. 693. In this case an 

vol. in 



indictment for arson in the second 
degree in burning a warehouse with 
the property therein contained, of the 
value of fifteen hundred dollars, it 
was held that proof that the value of 
the warehouse alone was more than 
five hundred dollars was no variance. 
98. Boone v. State (Miss.), 33 So. 
172 (holding the omission of the word 
"maliciously" to be fatal error); Er- 
win v. State (Tex. Crim.), 61 S. W. 
390. 

An instruction that " 'arson is the 
wilful and malicious burning of a 
building with intent to destroy it;' 
and that 'there must be, to consti- 
tute the crime of arson, a wilful and 
malicious burning of the building, and, 
as contained in the definition of the 
crime, there must exist an intent to 
destroy it,' " is sufficiently full on 
the question of intent to destrov. Peo- 
ple v. Fong Hong, 120 Cal. 685, 53 
Pac. 265. 

In People v. Hiltel, 131 Cal. 577, 63 
Pac. 919, an information for burning 
a dwelling, it was held that the court 
properly charged the jury that while 
they could not find the defendant 
guilty of arson for burning a wine 
cellar, inasmuch as he was not charged 
with burning that building, still if 
they should find from the evidence, be- 
yond any reasonable doubt, that he set 
fire to the wine cellar wilfully and 
maliciously, and that it "was situate 
so close to the building alleged in the 
information as having been burned 
by defendant as that the burning of 
said wine cellar necessarily caused, 
and did then and there cause, the 
flames from said wine cellar to be 
communicated to said house charged 



ARSON 



29 



V. FORM OF VERDICT. — A verdict is sufficient which clearly 
and without reasonable doubt informs the court of the finding of 
the jury." 

Where different degrees are charged in different counts, it is the 
better practice for the verdict to state under which count the de- 
fendant is found guilty. 1 



. . . as having been bnrned by de- 
fendant, and that said fire was then 
communicated from said wine cellar 
to said alleged house alleged to have 
been burned, and then and there 
caused said house to take fire and be 
consumed, this would constitute a burn- 
ing within the meaning of the law of 
the crime of arson." 

After the jury has been given the 
statutory definition of arson, it is not 
error to refuse to charge that "arson 
is a crime against the security of the 
dwelling house as such and the posses- 
sion, and not against the building as 
property." People v. Lee Hung (Cal.), 
1 Pac. 155. 

When the court has instructed the 
jury that in order to find the de- 
fendant guilty they must be satisfied 
from the evidence, beyond a reasona- 
ble doubt, that he set fire to the 
building with the intent to destroy it, 
refusal of instructions asked by de- 
fendant bearing upon the burning of 
the building and its contents, with in- 
tent to defraud an insurance company 
and without intent to destroy the 
building, is not improper, especially 
when such instructions were not as 
clear and explicit as they should have 
been. People v. Mooney, 132 Cal. 13, 
63 Pac. 1070. 

99. In Davis v. State, 52 Ala. 
357, "the indictment contained a 
single count charging specifically 
every fact necessary to constitute the 
offense of arson in the first degree. 
The verdict is of guilty, and the pun- 
ishment is by the jury affixed at ten 
years' imprisonment in the peniten- 
tiary. This verdict is necessarily an 
ascertainment of the degree of the 
defendant's guilt as certainly and ex- 
pressly as if the jury had declared 
in so many words that arson in the 
first degree was the offense found by 
them." 

1. Carter v. State, 20 Wis. 647. 

Where an indictment in one count 
charges statutory arson in the third 
degree, which is a misdemeanor, and 



in another count charges arson in the 
second degree, which is a felony, there 
is a misjoinder; and upon a general 
verdict of "guilty as charped in the 
indictment," which cannot be referred 
to either count, a motion in arrest of 
judgment should be sustained. James 
v. State, 104 Ala. 20, 16 So. 94; Gib- 
son v. State, 54 Md. 447. 

In the case of an indictment of two 
counts, one of which is good and the 
other bad, and the verdict is general, 
the judgment will not be set aside. 
If no demurrer has been interposed, 
a general verdict of guilty will be 
referred to the good count, and the 
conviction will be sustained. May V. 
State, 85 Ala. 14, 5 So. 14. 

Where the indictment charges arson 
in the second and third degrees, a 
general verdict of guilty in manner 
and form as charged, without specify- 
ing the degree, is sufficient. State v. 
Sivils, 105 Mo. 530, 16 S. W. 880. 

Under a statute declaring that when 
"a crime is distinguished into de- 
grees, the jury, if they convict the 
defendant, must find the degree of 
the crime of which he is guilty," it 
is error to charge that if the jury 
find the defendant guilty the form of 
their verdict should be: "We, the 
jury in the above cause, find the de- 
fendant guilty as charged in the in- 
dictment." People v. Coch, 53 Cal. 
627. 

If only the lowest degree of the 
crime is charged, it is not necessary 
for the jury to specify the degree of 
the crime of which the defendant is 
guilty. People v. Fisher, 51 Cal. 319. 

Under an indictment charging that 
the defendant did "wilfully sot fire 
to or burn a dwelling-house," a ver- 
dict finding the defendant guilty of 
an attempt to commit arson will be 
referred to the indictment and be held 
as finding defendant guilty of an at- 
tempt to commit arson in the first or 
second degree; and such verdict is 
not subject to the objection of in- 
definiteness, in that it does not find ex- 

vol. in 



30 



ARSON 



Fact of Insurance. — It seems that the verdict should find the fact 
of insurance, where the charge is of arson with intent to defraud 
insurer. 2 



pressly whether the attempt was to 
commit the offenst in the first or sec- 
ond degree. Beubow v. State, 128 Ala. 
1, 29 So. 553. 

2. In People v. Morley, 8 Cal. App. 
372, 97 Pac. 84, a prosecution for 
burning certain property with intent 
to defraud the insurer, the verdict 
was as follows: "We, the jury in the 
above entitled action, find the de- 
fendants guilty of wilfully and mali- 
ciously burning the personal property 
named in the information with intent 
to defraud the insurance company as 
charged in the information." In hold- 
ing the verdict sufficient the court, 
by Allen, P. J., said: "It is true 
that the verdict is to a degree in- 
formal. There is no express finding 



that the property destroyed was, in 
fact, insured. But the verdict should 
be construed in connection with the 
pleadings and the information (Peo- 
ple v. Tilley, 135 Cal. 62, 67 Pac. 42) ; 
and construed so as to give effect to 
the manifest intention of the Jury 
(People v. Holmes, 118 Cal. 448, 50 
Pac. 675). The information charged 
that the property so burned was in- 
sured by a designated corporation. 
. . The fraud upon the company 
as charged in the information was 
the burning of insured property. The 
verdict, when read in connection witn 
the information, is certain in the in- 
tent to find that the property burned 
was insured. ' ' 



vol m 



ASSAULT AND BATTERY 

By A. P. RITTENHOUSE, 
Sometime Judge of the Eighth Judicial District of Colorado, 



I. DEFINITION, 32 
II. CRIMINAL PROSECUTION, 33 

A. Original Jurisdiction, 33 

B. Concurrent Jurisdiction, 33 

C. Affidavits, Informations and Indictments, 34 

1. Venue, 34 

2. Charging Offense, 34 

3. Force and Arms, 35 

4. Variance, 35 

5. Description of Person Assailed, 35 

6. Description of Defendant, 36 

7. Committed on Several Persons, 36 

8. Committed by Several Persons, 36 

9. Joinder of Offenses, 36 

10. Conclusion, 36 

11. Verification, 36 

12. Approved Forms, 37 

D. Trial, 37 



Vol. m 



32 ASSAULT AND BATTERY 

1. Right to Jury Trial, 37 

2. Several Defendants, 38 

3. Burden of Proof, 38 

4. Jury Judges of Self-Defense, 38 

5. Adequate Cause, 38 

III. CIVIL ACTIONS, 38 

A. Jurisdiction, 38 

B. Pleading, 38 

1. Facts Shoxdd Be Stated, 38 

2. Against Principal for Act of Agent, 39 

3. Allegations of General Damages, 40 

4. Special Damages Must Be Pleaded, 40 

6. Exemplary Damages — Facts To Be Pleaded, 41 

6. Forms of Complaints and Declarations, 42 

7. General Denial, 42 

8. Justification Must Be Pleaded, 43 

9. Preserving the Peace, etc., 44 

10. Several Defenses May Be Pleaded, 44 

C. Replication De Injuria, 44 

D. Trial, 45 

1. Burden of Proof, 45 

2. .Rigr/ii To Open and Close, 45 

3. Effect of Aousive Language, 45 

E. Judgment* — Several Defendants, 45 

I. DEFINITION. — Assault. — An assault is an attempt or offer, 
with force and arms, to do a corporal hurt to the person of another, 
whether from malice or wantonness, with such circumstances as 

vol. m 



ASSAULT AND BATTERY 



33 



denote, at the time, an intention, coupled with the present ability, 
of using actual violence against the person. 1 

Battery. — Every battery includes an assault. They generally go 
together, the assault being the initiation or offer to commit the act 
of which the battery is the consummation. A battery is the unlaw- 
ful wilful touching of the person of another, by the aggressor, or 
by some substance put in motion by him. 2 

II. CRIMINAL PROSECUTION. — A. Original Jurisdiction.— 
Generally, justices of the peace and police justices have original 
jurisdiction of simple assaults and assault and battery. 8 

B. Concurrent Jurisdiction. — In some states courts of record 
have original concurrent jurisdiction with justices of the peace and 
police justices. 4 



1. U. S. — Price v. United States, 156 
Fed. 950, 85 C. C. A. 247, 15 L. R. A. 
(N. S.) 1272, annotated case. Ala.— Tar- 
ver v. State, 43 Ala. 354. Del. — State 
v. Pepe, 76 Atl. 367; State v. Mills, 
6 Penne. 497, 69 Atl. 841; State v. 
Brown, 5 PenneT 440, 63 Atl. 328; State 
v. Truitt, 5 Penne. 466, 62 Atl. 790; 
State v. Wilson, 5 Penne. 77, 62 Atl. 
227. la. — State v. Cody, 94 Iowa 169, 
62 N. W. 702. Md. — Handy r. John- 
son, 5 Md. 450. Mass. — Com. v. 
White, 110 Mass. 407. Mich. — People 
v. Carlson, 125 N. W. 361. Minn.— 
Cressy v. Republic Creosoting Co., 108 
Minn. 349, 122 N. W. 484. Miss. — 
Smith v. State, 39 Miss. 521. Mo. — 
State v. Hines, 148 Mo. App. 289, 
128 S. W. 248; Burley v. Menefce, 129 
Mo. App. 518, 108 S. W. 120. N. Y.— 
Hayes v. People, 1 Hill 351. Okla.— 
Clark v. State (Okla. Crim.), 106 Pac. 
803; Tyner v. United States, 2 Okla. 
Crim. 689, 103 Pac. 1057, 1059. S. D.— 
State v. Archer, 22 S. D. 137, 115 N. W. 
1075. Tenn. — Bloomer v. State, 3 
Sneed 66. Tex. — Drake v. State 
(Tex. Crim.), 136 S. W. 1064, quoting 
Pen. Code, Art. 502, Subd. 3. Wash.— 
Howell v. Winters, 58 Wash. 436, 108 
Pac. 1077; State v. Heath, 57 Wash. 
246, 106 Pac. 756. Wis. — Donner v. 
Graap, 134 Wis. 523, 115 N. W. 125; 
Degenhardt v. Heller, 93 Wis. 662, 68 
N. W. 411. 

An assault is defined to be an in- 
choate violence to the person of an- 
other with the present means of carry- 
ing the intent into effect. Threats 
are not sufficient; there must be proof 
of violence actually offered, and this 
within such distance as that harm 
might ensue if the party was not pre- 



vented. People v. Lilley, 43 Mich. 521, 
526, 5 N. W. 982. 

Facts Must Be Averred. — In an ac- 
tion for assault the petition must allege 
the facts which constitute the assault. 
Reed v. Maley, 115 Ky. 816, 74 S. W. 
1079. 

2. Ala. — Hyde v. Cain, 159 Ala. 364, 

47 So. 1014; Engelhardt V. State, 88 
Ala. 100, 7 So. 154. Del. — Armstrong 
v. Little, 4 Penne. 255, 54 Atl. 742; 
Armstrong v. Rhoads, 4 Penne. 151, 53 
Atl. 435. 111. — Wineberger v. Bliss, 53 
111. App. 112; Westcott v. Arbuekle, 12 
111. App. 577, 580. Ind. — Kirland v. 
State, 43 Ind. 146, 153, 13 Am. Rop. 
386, citing 3 Cooler's Bl. Com. 120. 
Mass. — Com. v. McKie, 1 Gray 61, 61 
Am. Dec. 410; Com. v. Clark, 2 Mete. 
23. Eng. — Cole r. Turner, 6 Mod. 149, 
87 Eng. Reprint 907. 

And see Bacon's Abridgment, title 
"Assault and Battery;" Waterman on 
Trespass 146; 1 Hawk. PI. Cr. 62. 

Any violence committed on the per- 
son of another with intent to injure is 
a battery. Cox v. State (Ark.), 136 S. 
Vv. 989. 

3. Ark. — State v. Cox, 8 Ark. 436, 
447. la. — State v. Lee, 37 Iowa 403; 
State V. Carpenter, 23 Iowa 506. N. H. 
State f. Hilton, 32 N. H. 285, 288; 
State V. Barrett, 17 N. H. 268. N. C— 
State v. Stafford, 113 N. C. 635, 18 
S. E. 256; State v. Huntley, 91 N. C. 
617; State v. Watts, 85 N. C. 517. See 
State v. Thornton, 136 N. C. 610, 616, 

48 S. E. 602. S. C — State v. McKet- 
trick, 14 S. C. 346. 

4. Kennedy V. People, 122 HI. 649, 
13 N. E. 213; Hinkle v. State, 127 Ind. 
490, 26 N. E. 777; Virginia Code, 
§ 4106. 



Vol. Ill 



84 



ASSAULT AND BATTERY 



C. Affidavits, Informations and Indictments. — 1. Venue. — It 
is sufficient to charge the offense to have been committed in the 
county where the defendant is prosecuted. 6 . 

2. Charging Offense. — In some jurisdictions it is sufficient to 
charge the offense in the language of the statute, without stating 
the manner of it, or specifying the means whereby it was com- 
mitted. 6 It should be charged, however, that the act was com- 
mitted in an unlawful manner.' 



In Maine the supreme judicial court 
has concurrent jurisdiction with munic- 
ipal and police courts and trial jus- 
tices, of the offense of assault and bat- 
tery. State v. Jones, 73 Me. 280. So 
in Hawaii. The Queen t?. Young Quai, 
8 Hawaii 282. 

As an offense at common law assault 
and battery is cognizable by the circuit 
courts of West Virginia. State v. Mc- 
Kain, 56 W. Va. 128, 49 S. E. 20. 

5. Ky. — Kennedy v. Com., 3 Bibb 
490. Minn. — State v. Bell, 26 Minn. 

388, 5 N. W. 970. Mo. — State v. Foye, 
53 Mo. 336. 

8. CaL — People v. Perales, 141 Cal. 
581, 583, 75 Pac. 170. la. — State v. 
Douglass, 1 G. Gr. 550. Ind. — State 
v. Turlock, 46 Ind. 289. Kan. — Stater. 
Finley, 6 Kan. 222. Mo. — State v. 
Clayton, 100 Mo. 516, 13 S. W. 819; 
State v. Edward, 19 Mo. 674, 677; State 
v. Cox, 43 Mo. App. 328. Term. — 
Bloomer v. State, 3 Sneed 66. Tex. — 
Eoberson v. State, 15 Tex. App. 317. 

An indictment for assault and bat- 
tery, which charges that the accused 
made an assault upon a named person, 
and him did unlawfully beat, is suffi- 
ciently specific, though it does not 
allege what acts constituted the assault, 
nor in what manner the beating was 
done. Sims v. State, 118 Ga. 761, 45 
S. E. 621. 

In charging the commission of an as- 
sault under the Arizona statute it is 
not necessary to allege that defendant 
had the "present ability to commit 
a violent injury." The word assault 
is sufficiently defined by law, and by 
usual acceptance in common language. 
Mapula V. Territory, 9 Ariz. 199, 80 Pac. 

389. But in State V. Heath, 57 Wash. 
246, 106 Pac. 756, it was held that the 
phrase "did assault," in a complaint 
for assault with intent, etc., did not 
sufficiently eharge the crime of assault, 
the eonrt saying the complaint should 
have alleged that the appellant had the 
present ability to carry the attempt 

vol in 



into execution, either in the language 
of the statute or in equivalent words. 
Fullerton, J., dissented, saying inter 
alia: "This holding, I will undertake 
to show, is not only contrary to the 
rule of the common law, but contrary 
to the rule of every state of the 
Union that has passed upon the ques- 
tion, save tho state of Indiana. . . . 
From the earliest times, it has been 
held sufficient at common law to charge 
a simple assault with the words, 'did 
make an assault,' without further defi- 
nition or description of the offense, or 
further statement of the facts consti- 
tuting the assault; the governing prin- 
ciple being tnat the word 'assault' 
carried with it its definition, and 
hence, to allege that one person as- 
saulted another, was to allege that he 
did those acts which the law defined 
as constituting an assault." 

An information charging that defend- 
ants "did then and there violently 
beat, bruise, wound and ill-treat the 
complainant contrary to the statute, 
etc.," is sufficient under the Iowa stat- 
ute without charging that the acts com- 
plained of were done in an angry and 
wilful manner, and with a purpose to 
hurt or inflict corporal injury. State 
v. Boynton, 75 Iowa 753, 38 N. W. 505. 

The charge in an information that 
the defendant did beat, wound and ill- 
treat the prosecutor does not charge an 
aggravated assault. The use of the 
word "wound" does not change the 
offense from a simple assault and bat- 
tery to an aggravated assault. Com. 
v. Dunmire, 38 Pa. Super. 155. 

7. State v. Murphy, 21 Ind. 441. 

In Badger v. State, 5 Ga. App. 477, 
63 S. E. 532, the defendant was con- 
victed of assault and battery, under 
an accusation which charged defend- 
ant as follows: " 'The said Dennis 
Badger . . . with force and arms 
did assault and beat one C. D. Fields, 
in the state and eounty aforesaid, eon- 



ASSAULT AND BATTERY 



25 



3. Force and Anns. — The words "force and arms" are not neces- 
sary in describing an assault and battery in an indictment. 8 But 
it has been held that the information or indictment must charge that 
the offense was committed in a rude, insolent or angry manner. 9 

4. Variance. — There must be no variance between the affidavit 
and the information based upon it, in the description of the offense. 10 

5. Description of Person Assailed. — The information or indict- 
ment must give the name of the person upon whom the offense was 
committed, if known, or state that it is unknown. 11 



trary to the laws, good order, peace, 
and dignity of said state.' " Defend- 
ant moved in arrest of judgment be- 
cause it was not distinctly charged that 
the assault and battery was "unlaw- 
ful." The accusation was held suffi- 
cient, as the allegation that the offense 
was contrary to the laws of the state, 
the good order, peace and dignity there- 
of, was tantamount to charging that it 
was unlawful. 

Intent. — It has been held that in 
charging an assault and battery it is 
necessary to allege an intent to injure. 
Grayson v. State, 37 Tex. 228, where 
it was said that the injury and the 
intent to injure constitute the grava- 
men of the action, and both must be 
alleged. And see Cromwell v. State (Tex. 
Crim.), 131 S. W. 595, where, however, 
it waa held that in charging an aggra- 
vated assault an intent to injure need 
not be alleged. 

But in Moore v. State (Okla. Crim.), 
Ill Pac. 822, the court, referring to 
the statute, said: "The act which con- 
stitutes the assault and battery must 
be intentional and wrongful, and it 
must be committed with the intent to 
kill. That is all the statute requires 
in that respect, and those facts the 
information explicitly avers. Nor can 
we understand what act would be suf- 
ficient to constitute an intent. An in- 
tent is a fact and not an act. It may 
be evidenced by acts, but the informa- 
tion need not set out the evidence. 
Also this information charged that 
plaintiffs in error did intentionally and 
wrongfully' assault, beat, cut, stab, and 
wound one John Chee with a knife; 
and, if that does not allege a battery, 
we are at a loss to understand how one 
could be alleged. Section 2333, Sny- 
der's Comp. Laws, 1909." 

The word "unlawfully," in an infor- 
mation, necessarily implies a criminal 



intent. State v. Koonse, 123 Mo. App. 
655, 664, 101 S. W. 139. 

8. State v. Elliott, 7 Blackf. (Ind.) 
280. 

9. Slusser V. State, 71 Ind. 280; State 
V. Wright, 52 Ind. 307; Cranor V. State, 
39 Ind. 64. 

10. In Smith v. State, 57 Tex. Crim. 
6Ui>, 124 S. W. 665, the affidavit alleged 
that the assault was made on one Young 
by striking him with a knife and a 
chair. There was a fatal variance, for 
the information based on said affidavit 
alleged that the assault was committed 
by striking Young with the fist and 
with a chair. 

In Harrison v. State, 48 Tex. Crim. 
44, 85 S. W. 1058, the complaint charged 
an assault upon "Pierce Mount," and 
the information alleged it to have been 
committed upon "Pierce Mounts." 
This was fatal upon a motion in ar- 
rest of judgment. 

11. U. S. — United States v. Davis, 
4 Cranch C. C. 333, 25 Fed. Cas. No. 
14,924. Ind. — Brooster v. State, 15 
Ind. 190. la. — State v. Bitman, 13 
Iowa 485. Miss. — Grogan v. State, 63 
Miss. 147. N. Y. — White v. People, 
32 N. Y. 465. Tex. — State V. Elmore, 
44 Tex. 102; State v. Snow, 41 Tex. 
596; Eutherford v. State, 13 Tex. App. 
92; Eanch v. State, 5 Tex. App. 363. 

But an information is good if it 
charges an assault upon the person of 
the informant, and is subscribed and 
sworn to by him, though his name does 
not appear in the charging part of 
the affidavit. State v. McKinley, 82 
Iowa 445, 48 N. W. 804. 

A description of the person injured 
as Mary R., wife of the complainant, 
is sufficient. Com. v. Gray, 2 Cush. 
(Mass.) 535. 

Alias. — The name of the person al- 
leged to have been assaulted is used 
only for the purpose of identification. 

vol. m 



m 



ASSAULT AND BATTERY 



6. Description of Defendant. — In a prosecution for assault and 
Dattery the name of the defendant should be properly stated. 12 

7. Committed on Several Persons. — Assault and battery may be 
charged to have been committed on two or more persons at the 
same time. 13 

8. Committed by Several Persons. — An information or indictment 
may charge several defendants jointly with assault and battery. 14 

9. Joinder of Offenses. — Several assaults may be joined in one 
indictment. 15 

10. Conclusion. — In some states an indictment for assault and 
battery should conclude "contrary to the form of the statute in 
such case made and provided." 16 But it will not be quashed for 
want of such conclusion. 17 In others the conclusion must be 
"against the peace and dignity of the state." 18 

11. Verification. — In Missouri an information for assault and 



When such person is known equally 
well by two names, either of them is 
sufficient. State v. Bundy, 64 Me. 507, 
509. 

Person Since Deceased. — In Com. v. 
Ford, 5 Gray (Mass.) 475, the indict- 
ment averred that the defendant "in 
and upon the body of one Richard 
Pappoon, late of Marblehead, in said 
county of Essex, deceased, in the peace 
of said Commonwealth then and there 
being did make an assault, and him 
the said Eichard Pappoon, with a large 
and heavy whip, which the said John 
Ford then and there in his right hand 
had and held, did then and there strike 
divers grievous and dangerous blows 
upon the head of him the said Eichard 
Pappoon, whereby the said Eichard 
Pappoon was then and there cruelly 
and dangerously beaten and wounded, 
and his life greatly endangered." This 
was held to charge an assault and 
battery upon the living body of Eich- 
ard Pappoon, since deceased. 

12. State v. Seely, 30 Ark., 162 
(holding initial letters of christian 
name sufficient); Com. V. Eobinson, 165 
Mass. 426, 43 N. E. 121 (where initial 
of defendant's middle name is stated 
in one part of the indictment, and omit- 
ted in another part. See the title 
"Indictment and Information." 

13. Mass. — Com' V. O'Brien, 107 
Mass. 208; Com. v. McLaughlin, 12 
Cush. 615. Mich. — People v. Ellsworth, 
90 Mich. 442, 51 N. W. 531. R. I. — 
Kennev v. State, 5 E. I. 385. Tex. 
State v. Bradley, 34 Tex. 95. Eng.— 
Eex V. Benfield, 2 Burr. 980, 984, 97 



Eng. Eeprint 664; Eeg. v. Giddins, Car. 
& M. 634, 41 E. C. L. 344; Anon., Lofft 
27, 98 Eng. Eeprint 515. 

In Com. V. O'Brien, 107 Mass. 208, 
the court said: "It is now well set- 
tled, though it was once held other- 
wise, that a man who assaults two per- 
sons at the same time may be charged 
in a single count with the assault upon 
both, as one breach of the peace." 

14. Ala. — Thompson v. State, 25 
Ala. 41. Ga. — Lewis v. State, 33 Ga. 
131. Ky. — Bosleys v. Com., 7 J. J. 
Marsh. 599, 23 Am. Dec. 439. N. Y.— 
White v. People, 32 N. Y. 465. Pa. 
Shouse v. Com., 5 Pa. 83. Tenn. — 
Buchanan Fowler v. State, 3 Heisk. 
154. 

An information or indictment may 
properly charge several persons with 
assault and battery upon two or more 
persons, in the same count, if the of- 
fense was committed by the same act 
or acts. People v. Ellsworth, 90 Mich. 
442, 447, 51 N. W. 531. 

15. Com. v. Malone, 114 Mass. 295, 
298; State v. Sims, 3 Strobh. (S. C.) 
137 (where an election was required 
after the evidence). 

16. State v. McKettrick, 14 S. C. 
346. See the title "Indictment and 
Information." 

17. State v. Berry, 9 N. J. L. 374, 
where it was moved to quash because 
the conclusion was "contrary to the 
form of the statute," instead of "stat- 
utes. ' ' 

18. Treadaway v. State (Tex. Crim.), 
135 S. W. 147. 



vol. m 



ASSAULT AND BATTERY 



37 



battery must be verified, or based upon a verified complaint. 1- 

12. Approved Forms. 20 

D. Trial. — 1. Right to Jury Trial. — In a prosecution for assault 
and battery the defendant has a right to be tried by a jury. 21 



19. State v. Calfer (Mo.), 4 S. W. 
418. 

The complaint of the prosecutor filed 
with the justice of the peace is part 
of the proceedings. State v. Foye, 53 
Mo. 336. 

In State V. Ostmann, 123 Mo. A pp. 
114, 100 S. W. 696, an information was 
signed and filed in the circuit court 
by the prosecuting attorney. It was 
based upon an affidavit made by the 
party assaulted, and recited that fact, 
and also that such complaint was filed 
with the information, and was held 
sufficient. 

Before a Notary. — ■ An affidavit to a 
complaint for assault and battery, when 
sworn to before a notary public, will 
authorize a justice of the peace to is- 
sue a warrant. State v. Mullen, 52 
Mo. 430. 

20. Form of affidavit before a jus- 
tice of the peace adapted from State 
V. McKinley, 82 Iowa 445, 48 N. W. 
804. 

State of Iowa, \ 
Mitchell County. J ss - 

Harry Jones being duly sworn, on his 
oath accuses Richard Roe of said 
county, of the crime of assault and 

battery committed in Township, 

Mitchell County, Iowa, on the day 

of , 1910, upon the person of him 

the said Harry Jones, by said Richard 
Roe then and there unlawfully, ma- 
liciously striking, kicking, beating, 
bruising and injuring the person of this 
informant, Harry Jones, contrary to the 
statutes of the state of Iowa, and this 
informant asks for the arrest and pun- 
ishment of said Richard Roe according 
to law. 

(Signed) Harry Jones. 

Subscribed and sworn to before me 

this the day of , 1910. 

Robert Smith, 
Justice of the Peace. 

Form of indictment, adapted from 
Harne r. State, 39 Md. 552. 
State of Maryland, 
Carroll County, towit: 

The Grand Jurors of the State of 
Maryland, for the body of Carroll 
County do on their oaths present, that 



John Doe, late of Carroll County afore- 
said, on the day of , in the year 

of our Lord Nineteen Hundred and 
Ten, with force and arms at the county 
of Carroll, aforesaid, in and upon one 
Richard Roe, in the peace of God, and 
the said state then and there being, 
did make an assault, and him the said 
Richard Roe, did then and there beat, 
bruise and wound, to the great dam- 
age of the said Richard Roe, and 
against the peace, government and dig- 
nity of the state. 

Form of indictment, adapted from 
Evans v. State, 24 Ohio St. 208. 

After the title: The Jurors of the 
Grand Jury of the State of Ohio, within 
and for the body of the county of 
Harrison, impaneled, sworn and charged 
to inquire of crimes and offenses com- 
mitted wifhin said County of Harrison, 
in the name and by the authority of 
the State of Ohio, on their oaths do 
find and present, that John Doe, late 

of said county, on the day of 

A. D., 1910, at the county aforesaid' 
did unlawfully make an assault in and 
upon one Richard Roe, then and there 
being and him, the said Richard Roe, 
then and there beat, wound and ill- 
treat, and other wrongs to the said 
Richard Roe then and there did, con- 
trary to the form of the statute in 
such case made and provided, and 
against the peace and dignity of the 
State of Ohio. 

James M. Pierce, 
Prosecuting Attorney. 

Form of indictment, adapted from 
Reg. v. Richardson, 46 U. C. Q. B. 375. 
Title and Court. 

Charging part. — For that the said 

defendant on the day of 

A. D., at did in and upon one ■ 

make an assault, and him said ,li,i 

then and there beat, wound and ill- 
treat, thereby then occasioning to the 

said actual bodily harm, and other 

wrongs to the said then and there 

did, to the great damage of the said 

; , against the form of the statute 

in such case made and provided, and 
against the peace, etc. 

21. Miller v. State, 3 Okla. Crim. 
457, 106 Tac. 810. 

vol. m 



38 



ASSAULT AND BATTERY 



S. Several defendants may be tried jointly, but the verdicts and 

judgments must be several. 22 

Conviction and Acquittal. — Some may be convicted, and others ac- 
quitted. 23 

3. Burden of Proof. — The burden of showing justification is upon 
the defendant. 24 

4. Jury Judges of Self -Defense. — In a prosecution for assault and 
battery the jury are the judges of the necessity for the degree and 
amount of force used in self-defense. 26 

5. Adequate Cause. — Under a statute prescribing that certain 
things shall be adequate cause for an assault it is for the court to 
determine whether the things shown amounted to adequate cause. 26 

Ill CIVIL ACTIONS. — A. Jurisdiction. — An action for dam- 
ages for assault and battery is transitory, and may be brought in 
anv iurisdiction where the defendant can be found. 27 

B Pleading 1. Facts Should Be Stated. — The facts constitut- 
ing the assault and battery complained of should be set forth in 
the complaint or declaration. 28 . It has been held not necessary to 



22. Bosleys v. Com., 7 J. J. Marsh. 
(Ky.) 599, 23 Am. Dec. 439. 

If one of several defendants pleads 
guilty, the others cannot claim as a 
matter of right to be tried separately 
from him. Thompson v. State, 25 Ala. 
41. 

23. Lewis v. State, 33 Ga. 131; 
Shouse v. Com., 5 Pa. 83. 

Some may be convicted of assault 
and battery and others of an assault 
only. White v. People, 32 N. Y. 465. 

24. Badger v. State, 5 Ga. App. 477, 
63 S. E. 532. 

25. Mass. — Com. v. Bush, 112 Mass. 
280. Minn. — Gallagher v. State, 3 
Minn. 270. Tex. — Aycock v. State, 
(Tex. Crim.), 133 S. W. 683. 

26. Morrison V. State (Tex. Crim.), 
135 S. W. 551, where Davidson, P. J., 
said: "Where the statute prescribes 
that certain things constitute adequate 
cause, the court should instruct the jury 
that such constitute adequate cause, 
and not leave it, as a matter of fact, 
to be ascertained by the jury. Insult- 
ing conduct of or toward a female 
relative as a matter o-f law is prescribed 
by the Legislature as adequate cause. 
The court would not be justified in 
submitting the issue to the jury to de- 
termine whether such was insulting lan- 
guage, but must charge the jury, as a 

vol m 



matter of law, that such insulting lan- 
guage is adequate cause." 

27. Conn. — Lillibridge v. Barber, 
55 Conn. 366, 11 Atl. 850. Kan.— 
McAnarney v. Caughenaur, 34 Kan. 621, 
9 Pac. 476. Ky. — Watts v. Thomas, 2 
Bibb 458. Md. — Eedgrave v. Jones, 
I H. & McH. 195. 

A wife cannot maintain an action 
against her husband for assault and 
battery, though the statute gives her 
the right to sue in her own name for 
damages to her person. Schultz v. 
Schultz, 89 N. Y. 644, reversing 27 
Hun 26. 

28. Kicketts v. Sandifer, 69 Ind. 318, 
that the defendant committed the as- 
sault. 

Facts. — The petition must allege the 
facts which constitute the assault; it 
is not sufficient to allege that the de- 
fendant "unlawfully set upon and as- 
saulted" the plaintiff, this being a legal 
conclusion. Stivers v. Baker, 87 Ky. 
508, 9 S. W. 491. 

' ' A petition which contains averments 
to the effect that defendant wilfully 
and maliciously with force and violence 
pushed and shoved plaintiff across a 
room to a door, and out of the door 
to the ground, a distance of six feet, 
and that as a result plaintiff's leg was 
broken and his knee crushed, and to 
his damage in the sum of $5000.00, 
states a cause of action for damages 



ASSAULT AND BATTERY* 



39 



allege in terms that an assault and battery was unlawful," nor 
that it was wilful or malicious, 80 nor that plaintiff was without 
fault, 81 nor that opprobrious language was used at the time. 82 And 
the place where it was committed need not be particularly stated. 83 

2. Against Principal for Act of Agent. — Where it is sought to 
hold a defendant liable for an assault and battery committed by 
his agent it must be alleged that the agent was at the time engaged 
in the defendant's business. 8 * 



for assault and battery." Fink v. 
Busch, 83 Neb. 599, 120 N. W. 167. 

But in Mitchell f?. Mitchell, 45 Minn. 
50, 47 N. W. 308, it was held that a 
general allegation that the defendant 
assaulted the plaintiff sufficiently 
charged an assault without specifying 
the acts. 

Inducemen'. — All the circumstances 
accompanying the act, and that consti- 
tute a part of the occurrence, may be 
pleaded so as to show the purpose and 
extent of the injury. Dornsife v. Ral- 
ston (Ore.), 106 Tac. 13, where the 
complaint set out that plaintiff owned 
certain real property enclosed by 
a fence in which was a gate, across 
which defendant fastened a wire, and 
that when plaintiff was removing the 
wire the assault occurred, etc. 

"Force and Arms." — It is not nec- 
essary to allege in so many words that 
the acts complained of were committed 
"with force" or "with force and 
arms." If facts are stated showing 
an actual infliction of violence on the 
person, it is sufficient. Greenman V. 
Smith, 20 Minn. 418. 

29. Schlosser v. Griffith, 125 Ind. 
431, 25 H. E. 459; Benson v. Bacon, 
99 Ind. 156. 

A petition for damages which alleged 
that the assault was committed with 
force and arms, but omitted to allege 
in terms that it was wrongful, was 
held good after verdict. McKee V. Cal- 
vert, 80 Mo. 348. 

SO. Andrews v. Stone, 10 Minn. 72. 
An intent to injure is not a neces- 
sary element of assault and battery in 
a civil action. Ala. — Seigel C. Long, 
53 So. 753. Ind. — Mercer v. Corbin, 
117 Ind. 450, 20 N. E. 132, 10 Am. St. 
Bep. 76, 3 L. R. A. 221. la. — Lut- 
termann v. Romey, 143 Iowa 233, 121 N. 
W. 10' . Minn.— Mohi V. Williams, 95 
Minn. 261, 104 N. W. 12, 111 Am. St. 
Rep. 462, 1 L. R. A. (N. S.) 439. Wis. 
Vosburg v. Putney, 80 Wis. 523, 50 



N. W. 403, 27 Am. St. Rep. 47, 14 L. 
R. A. 226, annotated case. 

The rule is otherwise in the case of 
a mere assault. Degen'-ardt v. Heller, 
93 Wis. 662, 68 N. W. 411. 

The intent to injure is presumed if 
the injury is caused by violence to the 
person. J< inson v. Daily, 136 Mo. App. 
534, 118 S. W. 530; Sumner v. Kinney 
(Te . Civ. App.), 136 S. W. 1192. 

31. Steinmetz v. Kelly, 72 Ind. 442, 
37 Am. Rep. 1/0; Avers V. Moore, 3 
I ' App. 226, 28 N. E. 724. 

32. Vest v. Speakman, 153 Ala. 393, 
44 So. 1017. 

S3. Place is not of the essence of 
this action. It may be alleged to have 
been committed in one place, and 
proved to have been committed in an- 
other place, provided it is within the 
jurisdiction of the court. Lillibridge 
V. Barber, 55 Conn. 366, 11 Atl. 850. 

34. Coal Belt Electric R. Co. e. 
Young, 126 111. App. 651. 

In Anderson v. Schesinger, 38 N. 
Y. Supp. 296, the complaint alleged that 
on July 20, 1893, the defendant and 
two of his agents entered the apart- 
ments of the plaintiff, and that one 
of said agents violently assaulted the 
plaintiff, striking her on the shoulder, 
and pushing her backward, whereby 
she was injured to her damage $1000. 
This was insufficient, because it was 
not alleged that the agent was engaged 
in the defendant's business when the 
acts were done, or that defendant par- 
ticipated. 

Amendment and Form. — In Marbury 
Lumb. Co. V. Wainwright, 150 Ala. 405, 
43 So. 733, it was held that a com- 
plaint charging an assault could be 
amended so as to charge an assault 
and battery. In this case the "com- 
plaint was amended in three particu- 
lars: First, by "'nserting immediately 
after the word 'premises,' and before 
the words 'all against the protest,' etc., 
the words, 'and plaintiff avers, that 



vol m 



4.0 



ASSAULT AND BATTERY 



3. Allegations of General Damages. — General damages consist 
of the natural and necessary consequences of an assault and bat- 
tery, and need not be specifically set forth in. a complaint or declar- 
ation. 35 

4. Special Damages Must Be Pleaded. — Injuries resulting from 
an assault and battery, which are not the natural and necessary 
consequences of it, must be specially pleaded in order to warrant a 
recovery therefor. 38 



the said trespass was wilful, and that 
by said conduct of said defendants, 
plaintiff was subjected to great humili- 
ation, indignity and shame; ' second, 
by inserting after the words, 'Marbury 
Lumber Company, a corporation,' where 
they appear in t** body of the 
complaint, the words, 'the said defend- 
ant Marbury Lumber Company, in all 
things acting by and through its ser- 
vants, agents and employees;' and 
third, by striking out the word, 'as- 
saulted' in the complaint, and insert- 
ing in lieu thereof, the words, 'com- 
mitted an assault and battery on plain- 
tiff.' ' The complaint after these amend- 
ments were made, reads as follows: 
' Georgia Ann Wainwright, plaintiff, 
claims of Marbury Lumber Company, 
a. corporation — the said defendant, 
Marbury Lumber Company in all things 
acting by and through its servants, 
agents and employes, — W. J. Bozeman 
and John Culpepper the defendants, 
two thousand dollars as damages for 
this, to-wit: That heretofore, to-wit, 
on the 3d of February, 1904, the plain- 
tiff, being the v. ife of John Wain- 
wright, was living in the residence of 
said husband, with her family, and at 
the homestead of said John Wain- 
wright, in said state of Alabama, and 
was occupying said residence and prem- 
ises, personally with her effects, con- 
sisting of household furniture, clothing, 
cooking uteasiJs, etc., and that sai^ 
defendants, on the 3d day of February, 
with divers other persons, to plaintiff 
unknown, assisting, came upon said 
premises unlawfully, and entered the 
said residence and homestead, and with 
force and arms, committed an assault 
and battery on plaintiff, and ejected 
plaintiff from the said premises and 
residence, and put her off said premises, 
and piaintiff aveie, that said trespass 
was wrongful, and that by said con- 
duct of said defendants, plaintiff was 
subjected to great humiliation, indignity 



and shame; all against the protest and 
will of the plaintiff, to the damage of 
two thousand dollars, for which she 
sues.' " 

35. Ind. — Morgan v. Kendall, 124 
Ind. 454, 24 N. E. M3. Kan. — Mc- 
Clenny V. Inverarity, 80 Kan. 569, 103 
Pac. 82. Ky. — Pepper v. Twyman, 6 
Ky. L. Rep. 426. Md. — Sloan v. Ed- 
wards, 61 Md. 89. Mo. — Yeager i\ 
Berry, 82 Mo. App. 534. 

If special damages are not alleged 
the plaintiff is not confined to the 
recovery of merely nominal damages, 
but may recover such general damages 
as he may prove to have resulted from 
the injury. Andrews V. Stone, 10 Minn. 
72. 

In Pennington V. Caughey, 145 Cal. 
10, 78 Pac. 227, there was a demurrer 
because the complaint did not allege 
damage. "But it is alleged in the 
complaint not only that the defendant 
assaulted the plaintiff and knocked him 
down, and kicked him in the face and 
on the body, but that he 'thereby seri- 
ously wounded and bruised the plain- 
tiff and rendered him sick, sore, and 
lame, to his damage in the sum of 
$5,000.' This is but to say, in language 
technically defined by long use, that 
by reason of the acts complained of 
the plaintiff suffered damage in, or 
sustained damage to, the amount of 
five thousand dollars. (Stephen on 
Pleadings, 33 et seq., 38; Baker v. Hope, 
49 Cal. 598.) Nor can the language 
used be otherwise construed. The com- 
plaint is entirely sufficient. (Childers 
V. Mercury, etc. Co., 105 Cal. 289; 
Hearne v. De Young, 132 Cal. 360.)" 

36. Ala. — Sloss-Sheffield Steel and 
Iron Co. V. Dickenson, 52 So. 594; 
Vest V. Speakman, 153 Ala. 393, 44 
So. 1017; Irby f. Wilde, 150 Ala. 402, 
43 So. 574. Mo. — O'Leary V. Eowan, 
31 Mo. 117. N. D. — Shoemaker t. 
Sonju, 15 N. L\ 578, 108 N. W. 42. 
Wis. — Birehard V. Booth, 4 Wis. 85. 



Vol. Ill 



ASSAULT AND BATTERY 



41 



6. Exemplary Damages. — Facts To Be Pleaded. — Where an as- 
sault and battery is wanton, reckless or malicious, exemplary dam- 
ages may be recovered, if such facts are pleaded. 87 



To recover for loss of time, or labor, 
or service, or for money paid out in 
doctor's bills incurred during the sick- 
ness resulting from the battery, the pe- 
tition must state the facts. Pepper 
v. Twyman, 5 Ky. L. Kep. 426. 

Mental Suffering. — Damages may be 
awarded for mental suffering, even 
though there be no unlawful touching 
of the body of the plaintiff and no 
physical injury. Lonergan V. Wm. 
Small & Co., 81 Kan. 48, 105 Pac. 27. 

In Morgan v. Kendall, 124 Ind. 454, 
24 N. E. 143, 9 L. R. A. 445, the com- 
plaint alleged "that by reason of the 
injuries inflicted by the appellants he 
was hurt and injured and became and 
was sick. Under these allegations we 
think the appellee might prove the ex- 
tent of his injuric? as well as tin ex- 
tent of his physical and mental suffer- 
ing resulting immediately irom the as- 
sault and battery alleged in his com- 
plaint. Such physical and mental suf- 
fering was not the subject of special 
damages witlin the legal meaning of 
that term, and it was not necessary 
to specifically set them out in the 
complaint." 

Indignity and Humilia+'on. — In Bon- 
neval V. American Coffee Co. (La.), 53 
So. 426, the court said: "We are not 
prepared to say that the allowance of 
damages is excessive. Besides physical 
pain and suffering, an indignity was 
inflicted on plaintiff's son, which must 
be considered. See Carrick v. Joachim, 
126 La. 5, 52 So. 173." 

37. Colo. — McConathy t. Deck, 34 
Colo. 461, 83 Pac. 135. Conn. — Shu- 
pack v. Gordon, 79 Conn. 298, 64 Atl. 
740; Hanna V. Sweeney, 78 Conn. 49.1, 
62 Atl. 785. Ga. — Berkn_r v. Dannen- 
berg, 116 Ga. 954, 43 S. E. 463. 111.— 
Coal Belt Electric E. Co. V. Young, 120 
111. App. 651. Ky. — Crocker v. Haley, 
2" Ky. .. Kep. 174, 92 S. W. 574. Mo. 
Williams v. St. Louis, etc. R. Co., 119 
Mo. App. 663, 96 S. W. 307; Happy v. 
Pritchar\ 111 Mo. App. 6, 85 S. W. 
655; Sloan v. Speaker, 63 Mo. App. 321. 
324. N. J. — Blackmore v. Ellis, 70 N. 
J. L. 264, 57 Atl. 1047. W. Va.— Fink 
V. Thomas, 66 W. Va. 487, 66 S. E. 
650; Smith v. Fahey, 63 W. Va. 346, 60 
S. E. 250. 



In Fleming v. Loughren, 139 Iowa 
517, 115 N. W. 506, exemplary dam- 
ages were warranted under a petition 
which alleged that the defendant "wil- 
fully and wantonly made a vicious and 
brutal assault upon the plaintiff," in- 
flicting physical injury and causing 
great "mental and physical pain." 

In Iaeger v. Metcalf, 11 Ariz. 283,94 
Pac. 1094, the complaint charged that the 
plaintiff Metcalf during the year 1906 
worked for the defendant Iaeger as 
cook in the latter 's hotel in the city 
of Tucson, and "that on or about July 
10th, 1906, while the plaintiff was en- 
gaged in the performance of his duties 
as cook under said contract, and with- 
out cause or provocation, the defendant 
made an attack upon the plaintiff, 
striking the plaintiff in the eye with 
false knuckles, knocking him down, and 
otherwise beating and bruising this 
plaintiff, causing the loss of one of 
plaintiff's eyes, and causing him to 
suffer great physical pain and anguish, 
and further causing him the loss of two 
months' time, and causing him to incur 
liabilities for medical attendance in the 
sum of $200.00, in the effort to save the 
said eye, '"and th^t as a result of said 
assault the plaintiff suffered general 
damages in the sum of ^15,000, where- 
fore he prays damages for said amount 
of $15,000. The complaint was suffi- 
cient to sustain an award of exemplary 
damages, the court saying, "All the 
elements of wantonness, malice, and de- 
liberate violence are oresent, if not by 
express averment, yet by proper impli- 
cation from the facts alleged." 

In Morgan v. Langford, 126 Ga. 58, 
61, 54 $. W. 818, the plaintiff alleged 
in his petition that the assault and bat- 
tery complained of was without cause 
and was aggravated both in the act 
and in the intention, and claimed 
punitive damages therefor. The alle- 
gation was held sufficient to support a 
claim for damages for humiliation 
caused by the assault and Lattery, un- 
der section 3606 of the Civil Code of 
Georgia. 

In Missouri, if exemplary damages 
are sought, the j etition must state 
separately the amount of exemplary 
damages sought tj be recovered. Bax- 

Vol. m 



42 



ASSAULT AND BATTERY 



6. Forms of Complaints and Declarations. — The forms given be- 
low are adapted from forms approved by the courts. 88 

7. General Denial. — Generally a defendant may answer the 
charge of assault and battery by a general denial, which puts in 
issue every material allegation in the complaint or declaration. 89 



ter v. Magill, 127 Mo. App. 392, 397, 
105 S. W. 679. 

But in North Dakota ; if the com- 
plaint alleges that the assault was wil- 
ful and malicious, 'exemplary damages 
may be awarded even though they are 
not prayed for in terms. Shoemaker 
V. Sonju, 15 N. D. 518, 108 N. W. 42. 

38. Form of complaint, adapted 
from Morris V. Casel, 90 Ind. 143. 

Title of action and court. 

The plaintiff complains of tL° d r 
fendant, and says that on or about the 

day of , A. D. , at 

, the defendant with force and 

arms assaulted the plaintiff, and 
with great force and violence struck 

the plaintiff with , and beat. 

bruised, wounded and ill-treated him, 
and -other wrongs to him, then and 
there did, by means whereof the plain- 
tiff was greatly hurt, bruised,- and 
wounded, and became and was sick, 
sore a disordered, and was perma- 
nently disabled and injured, and so re- 
mains and continues, — whereby he was 
and ir hindered and prevented from 
transacting any business, and has been 
obliged to lay out and expend a large 
sum of money, to-wit, the sum of 

$ in and about endeavoring to 

cure and heal himself of his aforesaid 
hurts, bruises, wounds, sickness, etc., 
by reason of all which he is damaged 

to the amount of $ , for which 

sum and costs he prays judgment. 

Attorney for Plaintiff. 

Verification. 

For- of petition, adapted from 
Sloan v. Speaker, o3 Mo. App. 323. 

Title of action and court. 

"Plaintiff states that on or about 

the day of , 1910, in the 

county of and state of Mis- 
souri the defendant did unlawfully 
assault plaintiff, and did then and 
there rudely, violently and with gTeat 
force, push and slam a large gate 
against plaintiff's arm and leg, and 
with said gate did stril ->, beat, bruise 
and wound her, the said plaintiff, upon 
tte leg and arm, and did then and 
there, in a rude, insolent and angry 



manner seize hold upon plaintiff with 
his hands and did violently shake 
plaintiff, and bruise and wound her 
upon the arms; that by reason of said 
beating, bruising and wounding, plain- 
tiff was crippled in her leg and arms, 
and was for several days lame, and 
unable to attend to her business af- 
fr.irs and was caused great bodily and 
mental suffering, and was thereby 
greatly humiliated and insulted, to her 
damage in the s^ of $5,000, for which 
she asks judgment." 

Form of declaration, adapted from 
Eicker v. Freeman, 50 N. H. 420, 9 
Am. Eep. 267. 

Title of action and court. 

Plaintiff alleges that the said , 

defendant, at , in the county of 

and state of New Hampshire, 

on thj day of , 1910, with 

force and arms did make an as- 
sault upon plaintiff, and beat, 
bruised, wounded and ill-treated 
him, and cast and threw him with 
great violence against and upon a coat 
and hat-hook, which penetrated the, left 
side of the neck of the plaintiff, se- 
verely wour cling and lacerating the 
skin, muscles and blood vessels, caus- 
in Q violent bleeding, great pain, sore- 
ness and swelling, in so much that the 
plaintiff's life w.,9 despaired of for a 
long space of tine, viz., for the space 
of two months; and in consequence of 
sail injuries the plaintiff became 
greatly deformed, we.kened and dis- 
abled in his spine, neck, face, eyes and 
other parts of his head and greatl^ in- 
jured in his hearing, voice, and speech, 
all of which continues and are likely 
to oecome permanent, to his damage 

in me sum of $ . And also the 

plaintiff was put to gr^at expense for 
nursing and meJicr 1 attendarce while 
laboring under the eSfects of said in- 
juries, viz.: the sur-. of $ and 

other injuries to the plaintiff the de- 
' ndant then and there die 1 against 
the peace, etc. Wherefore the plain- 
tiff praya judgment against the defend- 
ant for the sum of $ . 

39. Eoe v. Ko£ers, How. Pr. (N. 



vol. m 



ASSAULT AND BATTERY 



43 



8. Justification Must Be Pleaded. — The general issue does not 
suffice to put matters of justification to trial; such matters must 
be specially pleaded. 40 

Son Assault Demesne — Self-defense is properly set up as a defense 
to an action for assault and battery, by the plea of son assault 
demesne, which admits the assault and battery, but avers that it 
was committed in self-defense, the defendant using no more force 
than was necessary for that purpose. 41 



Y.) 356; Cogdell v. Yett, 1 Coldw. 
(Tenn.) 230. 

To a complaint for an assault and 
battery an answer stated that "the 
defendant is not guilty of the griev- 
ances in the plaintiff's complaint al- 
leged, or any or either of them, or 
any part thereof." This was held a 
good general denial. Hoffman v. Ep- 
pers, 41 Wis. 251, 257. 

40. Ala. — Mitchell v. Gambill, 140 
Ala. 316, 37 So. 290. Ga. — Kerwich 
t;. Steelman, 44 Ga. 197; Brooks v. 
Ashburn, 9 Ga. 297. HI. — Grabile v. 
Een, 110 HI. App. 587. Ind. — Myers 
v. Moore, 3 Ind. App. 226, 28 N. E. 
724; Lair v. Abrams, 5 Blackf. 191. 
Mass. — Hathaway v. Hatchard, 160 
Mass. 296, 35 N. E. 857; Cooper v. Mc- 
Kenna, 124 Mass. 284. Mo. — Thomas 
v. Werremeyer, 34 Mo. App. 665. Neb. 
Fink v. Busch, 83 Neb. 599, 120 N. W. 
167, holding that otherwise the de- 
fense cannot go to the jury. N. H. — 
Wheeler v. Whitney, 59 N. H. 197; 
Jewell v. Goodall, 19 N. H. 562. N. J. 
Blackmore V. Ellis, 70 N. J. L. 264, 57 
Atl. 1047. N. Y. — Coles v. Carter, 6 
Cow. 691. N. C. — Meeds v. Carver, 
29 N. C. 273. Ore. — Konigsberger v. 
Harvey, 12 Ore. 286, 7 Pac. 114. Vt. 
Wright v. Page, 2 Tyler 80. Wash.— 
Neilsen v. Hovander, 56 Wash. 93, 105 
Pac. 172. W. Va. — Shires v. Boggess, 
69 S. E. 466. Wis. — Price v. Grzyll, 
133 Wis. 623, 114 N. W. 100; Yeska v. 
Swendrzynski, 133 Wis. 475, 113 N. W. 
959; Atkinson v. Harran, 68 Wis. 405, 
32 N. W. 756. 

Admission. — The plea of justifica- 
tion must admit the allegations of the 
plaintiff. If a plea admits such alle- 
gations only in part, it is not a good 
plea of justification. Seymour v. Bailey, 
76 Ga. 338, 340. 

The plea of the general issue alone, 
does not enable the defendant to jus- 
tify his assault and battery. Thomas 
v. Riley, 114 HI. App. 520. 



41. HL — Wells v. Englehart, 118 
111. App. 217, 220. Ind. — Morris v. 
Casel, 90 Ind. 143; Smith v. Wickard, 
42 Ind. App. 508, 85 N. E. 1030. Mo. 
Rhine v. Montgomery, 50 Mo. 566; 
Happy v. Pritchard, 111 Mo. App. 6, 
85 S. W. 655. N. H. — Dole v. Erskine 
& Chase, 35 N. H. 503, 510. N. J.— 
Lutlopp v. Heckmann, 70 N. J. L. 272, 
57 Atl. 1046. ,N. Y. — Lansingh V. 
Parker, 9 How. Pr. 288; Collier v. 
Moulton, 7 Johns. 109. Term. — Cog- 
dell v. Yett, 1 Coldw. 230. Vt. — Bart- 
lett v. Churchill, 24 Vt. 218. W. Va— 
Shires v. Boggess, 69 S. E. 466. 

Such a plea is a good answer, al- 
though the assault and battery was of 
an aggravated character. Mellen v. 
Thompson, 32 Vt. 407. 

In civil actions for assault and bat- 
tery 6elf-defense is an excuse, the same 
as in criminal prosecutions, and under 
precisely the same principles. "In 
civil actions, as well as in criminal, 
the rule obtains that if the defendant 
was the aggressor, and brought on the 
difficulty, he cannot invoke the doc- 
trine of self-defense, because it would 
be allowing him to take the advantage 
of his own wrong." Thomason v. 
Gray, 82 Ala. 291, 293, 3 So. 38. 

The plea should aver every element 
or fact necessary under the law to con- 
stitute self-defense. Morris v. Mc- 
Clellan, 154 Ala. 639, 45 So. 641, 645. 

Amendment. — Where the defendant 
pleaded that the assault and battery 
was committed in defense of one son, 
and the evidence showed that it was 
actually committed in defense of an- 
other son, it was prejudicial not to 
allow an amendment to correspond with 
the evidence. Downs v. Jackson (Ky.), 
128 S. W. 339, where the court said 
that it was simply a case of mistaken 
identity, which should not deprive him 
of such defense as he had when he 
believed that he was acting in the 
necessary defense of one of his tons. 

vol hi 



44 



ASSAULT AND BATTERY 



9. Preserving the Peace, etc. — The plea of molliter manus imposuit 
substantially sets forth that the plaintiff was committing, or about 
to commit, some unlawful act, and that the assault and battery com- 
plained of consisted in the defendant gently laying his hands on the 
plaintiff to preserve the peace, or prevent the act, without hurting 
him. 42 

10. Several Defenses May Be Pleaded. — Generally the pleas gen- 
eral denial, son assault demesne and molliter manus imposuit may be 
joined in an answer to a complaint for assault and battery. 43 But 
it has been held otherwise. 44 

C. Replication De Injuria. — To a plea of son assault demesne 
the plaintiff may by a replication de injuria aver that the defend- 
ant used more force than was necessary for his self-defense. 45 



It is for the jury to determine 
whether or not defendant acted in 
self-defense. Newton v. Shivers (Tex. 
App.), 136 S. W. 805. 

Plea of son assault demesne, 
adapted from Gaither v. Blowers, 11 
Md. 536. 

Title of court and action. 

For plea to the declaration of the 
plaintiff the defendant alleges "that 
the said plaintiff just before the time 
when, etc., to-wit, on the day and year 
in the said declaration mentioned, at 
the county aforesaid with force and 
arms made an assault upon him, the 
said defendant, and would then and 
there have beaten, ill-treated, and 
greatly injured him the said defend- 
ant, if he had not immediately de- 
fended himself against the said plain- 
tiff; wherefore the said defendant did 
then and there defend himself against 
the said plaintiff, as he lawfully might, 
for the cause aforesaid; and; in so 
doing, did necessarily and unavoidably 
a little beat, wound and ill-treat the 
said plaintiff, doing no unnecessary 
damage to the said plaintiff on the 
occasion aforesaid. And the said de- 
fendant saith, that if any hurt or 
damage then and there happened to 
the said plaintiff, the same was oc- 
casioned by the said assault made by 
the said plaintiff on him, the said de- 
fendant, and in the necessary defense 
of himself, the said, defendant, against 
the said plaintiff, which are the sup- 
posed trespasses whereof the said plain- 
tiff hath above complained." 

42. A plea of molliter manus imposuit 
is a good answer to a declaration for 
simple assault and battery, but not good 
where the declaration alleges a wound- 



ing of the plaintiff. Mellen v. Thomp- 
son, 32 Vt. 407, 410. There must be 
a request to depart, refusal, resistance 
and damage to defendant after such 
request. Cox v. Cooke, 1 J. J. Marsh. 
(Ky.) 360. 

43. In Rhine V. Montgomery, 50 Mo. 
566, an action for damages, the de- 
fendant pleaded three defenses amount- 
ing in substance to the old pleas, not 
guilty, son assault demesne, and molliter 
manus imposuit. The last two men- 
tioned defenses were in justification of 
the defendant's acts, and in no sense 
express or implied admissions that they 
were unlawful, and the three defenses 
were clearly consistent both at com- 
mon law and under the statute. 

In Lansingh v. Parker, 9 How. Pr. 
(N. Y.) 288, the answers pleaded: 1st, 
a general denial; 2nd, that plaintiff 
committed the first assault; 3rd, that 
plaintiff was in defendants' inn mak- 
ing a great noise, etc., and defendants 
requested him to leave, and he refus- 
ing, they gently laid their hands on 
him to remove him. The defenses were 
not inconsistent. 

Where son assault demesne is pleaded 
together with the plea of not guilty, 
the latter plea puts the plaintiff upon 
proof of every material allegation in 
the declaration. Cogdell v. Yett, 1 
Coldw. (Tenn.) 230. 

44. Eoe v. Rogers, 8 How. Pr. (N. 
Y.) 356, where it was held that a gen- 
eral denial was inconsistent with 
matter of justification. . 

45. Fisher v. Bridges, 4 Blackf. 
(Ind.) 518; Dole v. Erskine & Chase, 
35 N. H. 503, 510; Curtis V. Carlson, 
2 N. H. 539. 

In Abney v. Mize, 155 Ala. 391, 46 



Vol. Ill 



ASSAULT AND BATTERY 



45 



D. Trial. — 1. Burden of Proof. — Where justification is pleaded, 
the burden is upon the defendant to establish it by evidence. 46 

2. Right To Open and Close. — Under a plea of justification the 
defendant has a right to open and close, 47 but not under a plea in 
mitigation of damages. 48 

3. Effect of Abusive Language. — The effect of opprobrious words 
or abusive language upon the question of damages is for the jury- 
to determine. 49 

E. Judgment. — Several Defendants. — In an action against 
several defendants 50 judgment may be taken against all or any of 



So. 230, the defendants interposed 
several pleas of justification and self- 
defense, to which the plaintiff replied 
as follows: " 'That defendants com- 
mitted the assault and battery in said 
complaint mentioned to a greater ex- 
tent and degree, and with more force 
than was reasonably necessary for the 
purpose in the pleas mentioned.' " 

In an action for assault and battery 
the plea son assault demesne and the 
replication de injuria present two ques- 
tions of fact to be tried and decided. 
"First, did the plaintiff commit the 
first assault; secondly, if so, did the 
defendant use more force than was 
necessary in his defense?" Bartlett 
V. Churchill, 24 Vt. 218. 

A replication de injuria to a plea of 
son assault demesne puts in issue all 
the averments of the plea. Harrison 
t;. Harrison, 43 Vt. 417. 

46. Cal — Marriott V. Williams, 152 
Cal. 705, 93 Pac. 875. 111. — Wells v. 
Englehart, 118 111. App. 217. Mo. — 
Johnson v. Daily, 136 Mo. App. 534, 
538, 118 S. W. 530. Wis. — Monson v. 
Lewis, 123 Wis. 583, 101 N. W. 1094. 

If the defendant sets up self- 
defense, the burden is upon him to 
make it affirmatively appear that he 
used no more force upon the plaintiff 
than reasonably appeared to him, under 
all the circumstances, to be necessary 
for his own personal safety. Mc- 
Quiggan v. Ladd, 79 Vt. 90, 97, 64 Atl. 
503, 14 L. K. A. (N. S.) 689. 

Cassidy V. Cody, 97 N. Y. Supp. 1046, 
was an action brought for an assault 
and battery upon plaintiff, alleged to 
have been committed without just 
cause or provocation. The answer was 
a general denial. Under the pleadings, 
justification was not an affirmative de- 
fense which put the burden of proof 
upon the defendant. 



47. Seymour v. Bailey, 76 Ga. 338. 
And see Givens v. Berkley, 108 Ky. 
236, 56 S. W. 158. See generally the 
title "Opening and Closing State- 
ments." 

48. Doerhoeper v. Shoemaker, 122 
Ky. 646, 97 S. W. 7. If the defend- 
ant pleads son assault demesne and 
plaintiff replies de injuria, the latter 
retains the right to open and close. 
Johnson v. Josephs, 75 Me. 544. 

49. Beckworth V. Phillips, 6 Ga. 
App. 859, 65 S. E. 10'<5; Garrett V. 
Herrigdrine, 7 Ga. App. 744, 67 S. E. 
1049. 

The question whether opprobrious 
words amount to justification, or only 
affect the amount of damages, is for 
the jury. The court has no right to 
charge that particular words are op- 
probrious. Thompson v. Shelverton, 131 
Ga. 714, 63 S. E. 220. 

Contra. — Words, however insulting 
or aggravating, will not justify an as- 
sault, and cannot be considered by the 
jury for the purpose of mitigating or 
reducing the amount of the actual dam- 
ages. Burley V. Menefee, 129 Mo. App. 
518, 522, 108 S. W. 120. 

50. Lovelace v. Miller, 150 Ala. 422, 
43 So. 734; Band v. Butte Elec. R. Co., 
40 Mont. 398, 107 Pac. 87, 91. 

In Little v. Tingle, 26 Ind. 168, the 
jury was instructed that if the defend- 
ants jointly committed the battery they 
were equally liable, and the damages 
must be assessed against them jointly. 
Held correct on principle. 

Joint Recovery. — To authorize a joint 
recovery against two or more persons 
for assault and battery, the jury must 
find as a fact that tuere was concert 
of action by the defendants in doing 
the acts complained of. Schafer v. 
Ostmann, 148 Mo. App. 644, 129 S. W. 
63. 

vol. in 



46 



ASSAULT AND BATTERY 



them. But there can be but one judgment and satisfaction for 
the same wrong. 61 



51. Page v. Freeman, 18 Mo. 421. 

There can be bnt one verdict, for 
a single sum, and not two or more 
verdicts for different sums against dif- 
ferent defendants. Marriot v. Williams, 
152 Cal. 705, 93 Pac. 875. 



In an action against several defend- 
ants, where several verdicts are render- 
ed, the plaintiff may take judgment 
against all, upon the verdict he may 
select. Cox v. Cook, 1 J. J. Marsh. 
(Ky.) 360. 



Vol. m 



ASSIGNMENT FOR THE BENEFIT OF 
CREDITORS 

By EDWARD W. TUTTLE.* 

I. EFFECT ON PENDING ACTIONS, 49 
II. ACTIONS AND PROCEEDINGS BY CREDITORS, 49 

A. In Disregard of Assignment, 49 

1. Generally, 49 — > 

2. Attachment, Garnishment and Execution, 51 

a. Generally, 51 

b. Collateral Attack by Attaching or Execution Cred- 

itor, 54 

c. Remedies of Assignee and Assignor, 55 

B. Property Not Covered by Assignment, 55 

C. To Set Aside Assignment, 55 

1. What Creditors May Sue, 55 

a. The General Rule, 55 

b. Estoppel, 56 

2. Time To Sue, 58 

3. Parties, 58 

4. The Bill or Complaint, 60 

5. Bill of Particulars, 61 

6. Injunction and Receiver, 61 

7. Trial and Judgment, 61 

a. Generally, 61 

b. Costs, 62 

c. Judgment, 62 

Appeal, 62 

D. Under Assignment, 62 

1. Generally, 62 

2. Allowance, Distribution and Payment of Claims, 63 

a. Finality, 63 

b. Proceedings for Distribution of Payment, 63 

•See the title "Admiralty."* 

vol. in 



48 ASSIGNMENT FOB THE BENEFIT OF CBEDIT0B3 

3. To Enforce Trust, 64 

a. Equitable Bemedy, 64 

b. Time To Sue, 65 

c. Parties, 65 

(I.; Plaintiff, 65 

(II.) Defendant, 66 

(III.) An Objection for N on- Joinder, 66 

(IV.) Intervention, 66 

d. Bill or Complaint, 67 

e. Appointment of Beceiver, 67 

f. Beference, 67 

E. To Set Aside Prior Fraudulent Conveyance, 67 

1. Bight of Creditor, 67 

2. Statutes, 68 

a Generally, 68 

b. Dereliction of Assignee, 70 

c. Parties and Pleadings, 70 

3. Limitations, 71 

in. ACTIONS AND PROCEEDINGS BY AND AGAINST AS- 
SIGNEE, 72 

A. By Assignee, 72 

1. Generally, 72 

2. Against Unlawful Attachment or Levy, 73 

3. Trover and Beplevin, 74 

4. Action for Usury, 74 

5. Prerequisites to Suit, 74 

6. Parties, 75 

7. Complaint, 76 

8. Set-Off and Counterclaim, 76 

B. Against Assignee, 78 

1. Z7pon Superior Claims or Liens Upon Property, 78 

a. Generally, 78 

b. Prerequisites, 79 

c. Parties, 79 

2. Zty Creditors of Assignor, 80 

C. Intervention by Assignee, 80 

D. Ac/tows on Assignee's Bond, 80 

1. W/io 1/<m/ Site, 80 

2. Pleading and Proof, 81 

3. Prior Adjudication, 82 

4. Damages and Costs, 82 

IV. REMEDIES OF ASSIGNOR, 82 

A. Generally, 82 

B. Against Unlawful Attachment, 83 

Vol m 



ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 49 



I. EFFECT ON PENDING ACTIONS. — Since an assignment for 
the benefit of creditors does not destroy the assignor's interest in the 
property, as would an absolute assignment, 1 such assignment by 
the plaintiff in a pending action does not therefore abate the 
action 2 or necessitate the substitution of the assignee. 3 The assignee 
may, 4 and should, 5 however, be made a party. The defendant can- 
not defeat the plaintiff's right of continuing an action against him 
by making a voluntary assignment pending the action. 6 His as- 
signee may, however, be made a party defendant, 7 though not with- 
out leave of court first obtained. 8 

The jurisdiction of the court in a pending action is not affected by 
an assignment for the benefit of creditors. 9 

II. ACTIONS AND PROCEEDINGS BY CREDITORS. — A. In 
Disregard of Assignment. — 1. Generally. — The fact that an as- 
signment has been made for the benefit of creditors does not sus- 



1. Effect of assignment generally on 
necessity of substitution or bringing in 
of plaintiff's or defendant's assignee. 
See Sedgwick V. Cleveland, 7 Paige 
(N. Y.) 287; and the title "Assign- 
ments." 

2. Mich. — Bedford t;. Penney, 65 
Mich. 667, 32 N. W. 888. Pa. — Thom- 
son v. Dougherty, 12 Serg. & R. 448. 
S. C. — Cleverly v. McCullough, 6 Rich. 
517. Wis. — Evans V. Virgin, 69 Wis. 
153, 33 N. W. 569. 

See also Hauser, etc. Co. v. Tate, 105 
Ky. 701, 49 S. W. 475; and the title 
"Abatement, Pleas of." 

An assignment by one partner does 
not extend to partnership assets and 
does not therefore prevent the remain- 
ing partners from continuing an action 
already begun on a debt due the firm. 
Cunningham v. Munroe, 15 Gray (Mass.) 
471. 

3. Stewart V. Spaulding, 72 Oal. 264, 
13 Pac. 661. 

By statute in Wisconsin it is pro- 
vided that the action may be continued 
by the original party, or the court may 
direct that his assignee be substituted. 
Evans v. Virgin, 69 Wis. 153, 33 N. W. 
569. 

Effect of Assignment in Bankruptcy. 
See The Pittsburgh, C. & St. L. R. Co. 
V. Nuzum, 60 Ind. 533; Kinnear t'. Tar- 
rant, 15 East 622, 104 Eng. Reprint 
978; and the title "Bankruptcy Pro- 

C66Ciill£rS ' ' 

4. Cleverly f. McCullough, 6 Rich. 
(S. C.) 517, but should be compelled 
to suggest the assignment on the rec- 
ord, and enter into a stipulation to pay 
Copts. 



Notice to the defendant of the action 
of the court making the assignee h 
party is unnecessary. Jewel V. Por- 
ter, 11 Ky. L. Rep. 162, 11 b. W. 717. 

5. Judson v. Metropolitan W. Mach. 
Co., 33 Conn. 467. 

6. Mich. — Detroit Stove-Wks. v. Os- 
mun, 74 Mich. 7, 41 N. W. 845; Barnum 
Wire & I. Wks. v. Speed, 59 Mich. 272, 
26 N. W. 802. Minn. — Smith v. St. 
Paul German F. Ins. Co.. 56 Minn. 202, 
57 N. V.\ 475. Ohio. — Collier v. Bick- 
ley, 33 Ohio St. 523. Wis. — Howitt V. 
Blodgett, 61 Wis. 376, 21 N. W. 29:2, 
holding that such an assignment is not 
a devolution of liability upon the as- 
signee within the meaning of § 2801 
Rev. St. 

See also Sedgwick v. Cleveland, < 
Paige (N. Y.) 287. 

The filing of a claim in the assigu- 
ment proceedings will not prevent the 
creditor from continuing to judgment 
his suit previously commenced. Detroit 
Stove-Wks. v. Osmun, 74 Mich. 7, 41 N. 
W. 485. Compare Smith v. St. Paul P. 
Ins. Co., 56 Minn. 202, 57 N. W. 475. 

The assignor cannot 6tay the con- 
tinuance of an action by a creditor 
against him. Butler v. Thompson, 4 
Abb. N. C. (N. Y.) 290. 

7. Eureka Steam-Heat Co. v. Slote- 
man, 67 Wis. 118, 30 N. W. 241. 

Right of Assignee To .Intervene. — 
See infra, III, C. _„.„„- 

8. Howitt v. Blodgett, 61 "Wis. 3/6, 
21 N. W. 292. 

9. E. T. Barnum, etc. Wire Wks. r. 
Speed, 59 Mich- 272, 26 N. W. 802. 

voi. m 



50 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 

pend the latter's right to sue the assignor, 10 even though they have 
accepted and claimed the benefits of the assignment, if their claims 
have not actually been satisfied. 11 An inhibition against such actions 



10. Cal. — George v. Pierce, 123 Cal. 
172, 55 Pac. 775, 56 Pac. 52; Francisco 
v. Aguirre, 94 Cal. 180, 29 Pac. 495. 
Ind. — Lawrence v. McVeagh, 106 Ind. 
210, 6 N. E. 327. Kan. — Limbocker t;. 
Higinbotham, 52 Kan. 696, 35 Pac. 783. 
See Bobb v. Bancroft, 13 Kan. 123. 
Ky.— Trotter V. Williamson, 6 T. B. Mon. 
38 Md. — National Park Bank v. La- 
nahan, 60 Md. 447. Mass. — Rice v. 
Catlin, 14 Pick. 221. Mich. — Detroit 
Stove-Wks. v. Osmun, 74 Mick. 7, 41 N. 
W. 845; Parsons v. Clark, 59 Mich. 414, 
26 N. W. 656. Minn. — Smith v. St. 
Paul German F. Ins. Co., 56 Minn. 202, 
57 N W. 475. Neb. — Morehead v. 
Adams, 18 Neb. 569, 26 N. W. 242. 
Nev. — Empey v. Sherwood, 12 Nev. 
355. Ohio. — Haskins v. Alcott, 13 
Ohio St. 210. Ore. — Thompson v. 
Beeves, 26 Ore. 46, 37 Pac. 46. S. D. 
Grigsby r. Day, 9 S. D. 585, 70 N. W. 
881 

As Ground for Delay. — An assign- 
ment for the benefit of creditors ' ' may, 
under certain circumstances, afford 
ground for a claim on the Court, in its 
discretion, for a delay of judgment, to 
give reasonable time for the assigned 
effects to be converted into money and 
applied according to the terms of the 
trust." Rice v. Catlin, 14 Pick. 
(Mass.) 221. 

11. Kan. — Smith v. Higinbotham, 
53 Kan. 250, 36 Pac. 336. Mass. — 
Rice V. Catlin, 14 Pick. 221. N. H.— 
First Nat. Bank v. Newman, 62 N. H. 
410. Ohio. — See Haskins v. Alcott, 13 
Ohio St. 210. 

See also: Ind. — ". T ew Albany Mfg. 
Co. V. Sulzer, 29 Ind. App. 89, 63 N. E. 
873. Ky. — Trotter v. Williamson, 6 
T. B. Mon. 38. Mo. — Simpson v. 
Schult-, 21 Mo. App. 639. 

Where a r;.'editor is also assignee 
and accepts the trust he msj neverthe- 
less sue the Assignor and reduce his 
claim to judgment. Watson v. Shuttle- 
worth, 53 Barb. (N. Y.) 357. 

The filing of a claim with the as- 
signee does not prevent a suit against 
the assignor. Harrson v. Shaffer, 60 
Ka-. 176, 55 Pac. 881 (following Lim- 
bocker V. Higinbotham, 52 Kan. 696, 
35 Pac. 783) ; Shullsburg Bank v. East- 
ern Kansg Bkg. Co., 6 Kan. App. 150, 

vol. ni 



42 Pac. 835; Smith v. St. Paul German 
F. Ins. Co., 56 Minn. 202, 57 N. W. 475. 
Compare Detroit Stove-Wks. Co. 0. Os- 
mun, 74 Mich. 7, 41 N. W. 845. 

The allowance of the claim and pay- 
ment of dividends thereon by the as- 
signee does not defeat the right of ac- 
tion against the assignor. Johnson v. 
Somerville Dyeing & B. Co., 15 Gray 
(Mass.) 216. * See also Cator v. Blount, 
41 Fla. 138, 25 So. 283. But such pay- 
ments should be deducted from the 
amount of the judgment. Limbocker 
v. Higinbotham, 52 Kan. 696, 35 Pac. 
783. 

The disallowance of the claim by the 
assignee from which no appeal is taken 
is conclusive so far as the assignment 
proceedings are concerned (State v. 
Kansas Ins. Co., 32 Kan. 655, 5 Pac. 
130); but does not affect the creditor's 
right to sue the assignor and subject 
property not covered by the assign- 
ment to the judgment. Limbocker v. 
Higinbotham, 52 Kan. 696, 35. Pac. 783. 

Where a creditor signs an acceptance 
by the terms of which he agrees to 
forbear suit till an accounting is made 
by the assignee, this constitutes a temp- 
orary bar to an action by him against 
the debtor. Kingsbury v. Deming, 17 
Vt. 367 note. But after an accounting, 
or what amounts to an accounting, or 
after the lapse of a reasonable time for 
an accounting, the bar is removed. Fos- 
ter v. Deming, 19 Vt. 313. And if a 
creditor does not sign such acceptance 
his assent thereto will not be implied 
because he receives from the assignee 
out of the trust fund a payment upon 
his claim before commencing suit 
against the debtor. Bank of Bellow 
Falls v. Deming, 17 Vt. 366. Where the 
assignment or acceptance signed by the 
creditor contains no provision for a re- 
lease or discharge of the debt his right 
of action is not affected thereby, 
though he has received a dividend on 
his claim. Hammond V. Pinkham, 149 
Mass. 356, 21 N. E. 871. , 

An assignment by an insolvent cor- 
poration to which the creditors are 
parties, which while releasing attach- 
ments by them and their right to at- 
tach or levy execution on the property, 
contains no release of their right to 



ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 51 



will not be implied from a statute regulating assignments for cred- 
itors where not expressly provided for therein. 12 But a statute 
amounting to an insolvency act, compliance with which discharges 
the debtor from further liability, does bar an action by the creditor 
against the debtor. 13 

2. Attachment, Garnishment and Execution. — a. Generally. — 
Neither property that has been assigned, 1 * nor the proceeds there- 



sue but expressly provides that persons 
contingently liable for the corpora- 
tion's debts shall not be thereby dis- 
charged, does not destroy a creditor's 
right to sue the corporation as a pre- 
liminary to suing its stockholders or 
officers. Nonantum Worsted Co. v. Hol- 
^ston Mills, 149 Mass. 359, 21 N. E. 
670. 

12. Haskins v. Alcott, 13 Ohio St. 
210. See also: Ind. — Lawrence v. 
McVeagh, 106 Ind. 210, 6 N. E. 327. 

Minn Smith v. St. Paul German F. 

Ins. Co., 56 Minn. 202, 57 N. W. 475. 
lex. — Keller v. Smalley, 63 Tex. 512. 

13. Cosh-Murray Co. v. Bothell, 10 
WasU. 314, 38 Pac. 1118. See Shulls- 
burg Bank v. Eastern Kansas Bkg. Co., 
3 Kan. App. 150, 42 Pac. 835. 

Such statutes sometimes expressly 
prohibit the prosecution of actions 
against the debtor. Hayne v. Justice's 
Court, 82 Cal. 284, 23 Pac. 125, 16 Am. 
8t. Rep. 114. 

14. U. S. — Ree* v. Mclntyre, 98 U. 
S. 507, 25 L. ed. 171. Cal. — Hecht v. 
Green, 61 Cal. 269; Taffts v. Manlove, 

14 Cal. 47, 73 Am. Dec. 610. Dak. — 
Straw v. Jenks, 6 Dak. U4, 43 N. W. 
491. D. O. — Smith v. Herrell, 11 App. 
Cas. 425. HI. — Wilson v. Aaron, 132 
111. 238, 23 N. E. 1037; Ninno v. Kuy- 
kendall, 85 HI. 476; Kimball v. Mulhern, 

15 111. 205; Wood;,rd v. Brooks, 18 111. 
App. 150; Deh^er v. Helmbacher & C. 
Mills, 7 HI. App. 47. Iowa. — Hamilton- 
Brown Shoe Co. v. Mercer, 84 Iowa 537, 
51 N. W. 415, 35 Am. St. Eep. 331. 
Kan. — Case v. Ingersoll, 7 Kan. 367. 
Ky. — Throckmorton v . Monroe, 22 Ky. 
L. Rep. 1450, 60 S. W. 721; Nethercutt 
v. Herron, 10 Ky. L. Rep. 247, 8 S. W. 
13. Md. — Strauss v. Rose, 59 Md. 525. 
Mass. — Reddy v. Raymond, 194 Mass. 
367, 80 N. E. 484; Cardany V. New Eng- 
land Furniture Co., 107 Mass. 116; 
Foster v. Saco Mfg. Co., 12 Pick. 451; 
Guild v. Holbrook, 11 Pick. 101; Gore 
v. Clisby, 8 Pick. 555; Lupton v. Cutter, 
8 Pick. 298; Dickinson v. Strong, 4 



Pick. 57. Mich. — Geer v. Trader's 
Bank, 132 Mich. 215, 93 N. W. 437; 
Angell v. Pickard, 61 Aich. 561, 28 N. 
W. 680. Minn. — Noyes v. Beaupre, 36 
Minn. 49, 30 N. W. 126; Lord v. Meach- 
em, 32 Minn. 66, 19 N. W. 346. Neb. 
Morehead V. Adams, 18 Neb. 569, L!6 j*. 
W. 242; Schlueter v. Raymond Bros. & 
Co., 7 Neb. 281. N. J. — Garretson v. 
Brown, 26 N. J. L. 425. N. C — An- 
derson v. Doak, 32 N. C. 295. Pa. — 
Gillespie v. Keating, 180 Pa. 150, 36 
Atl. 641, 57 Am. St. Rep. 622; McNutt 
v. Strayhorn, 39 Pa. 269; Taylor v. 
Hulme, 4 Watts & S. 407; Lippencott v. 
Barker, 2 Binn. 174, 4 Am. Dec. 433. 
R. I. — Smith v. Millett, 11 R. I. 528. 
S. C. — Howard v. Cannon, 11 Rich. Eq. 
23, 75 Am. Dec. 736. Term. — Wessell 
v. Gross (Tenn. Ch.), 57 S. W. 372. 
Tex. — Thaxton V. Smith, 90 Tex. 589, 
40 S. W. 14; Moody v. Carroll, 71 Tex. 
143, 8 S. W. 510, 10 Am. St. Rep. 734; 
Carter-Battle Gro. Co. v. Jackson, 18 
Tex. Civ. App. 353, 45 S. W. 615; South- 
ern Soda Works v. Vines (Tex. Civ. 
App.), 36 S. W. 942. Vt. — Hall v. 
Denison, 17 Vt. 310. Va. — Ford V. 
Watts, 95 Va. 192, 28 S. E. 179. W. 
Va. — Harrison's Exrs. v. Farmer's 
Bank, 9 W. Va. 424. Eng.— Pickstock 
v. Lyster, 3 Maule V. Selw. 371, 16 R. 
R. 300, 105 Eng. Reprint 650. Can. — 
Clarkson v. Ryan, 17 Can. Sup. Ct. 251; 
Breithaupt V. Marr, 20 Ont. App. 689. 

See the following Cc.ses: Ind. — Wal- 
lace V. Milligan, 110 Ind. 498, 11 N. E. 
599. Ky. — Robinson v. Worley, 19 
Ky. L. Rep. 791, 42 S. W. 95. Minn.— 
Smith v. St. Paul German F. Ins. Co., 
56 Minn. 202, 57 N. W. 475. Miss.— 
Grand Gulf, etc. Co. v. State, 10 Smed. 
& M. 428. Ohio. — Haldeman V. Hills- 
borough & C. R. Co., 2 Handy 101. Ore. 
Thompson v. Reeves, 26 Ore. 46, 37 Pac. 
46. Tenn. — Gordonsville Mill. Co. v. 
Jones (Tenn. Ch.), 57 S. W. 030; Bird- 
well v. Cain, 1 Coldw. 301. Tex.— 
Park v. Johnson, 23 Tex. Civ. App. 46, 
56 S. W. 759. Wash. — Jensen-King- 

vol ni 



52 



ASSIGNMENT FOB THE BENEFIT OF CBED1T0BS 



of '» can be attached or levied upon in an action by a creditor begun either 
before or after the assignment, if no lien has accrued prior thereto, 

_„ -~ . 11- m _ • t AfrC At Q W 



Byrd Co. v. Williams, 35 Wash. 161, 76 
Pac 934; Anderson »\ Eisdon-Cahn Co., 
13 Wash. 494, 43 Pac. 337. Wis. — Gil- 
bert Paper Co. v. Whiting Paper Co., 
123 Wis. 472, 102 N. W. 20. 

But see George V. Pierce, 123 Oal. 
172, 55 Pac. 775, 56 Pac 52 

The reason for this rule is that the 
property no longer belongs to the as- 
signor (Reed v. Mclntyre, 98 U. S. 507 
25 L. ed. 171; Lord v. Meachem, 32 
Minn. 66, 19 N. W. 346), and under 
some statutes is regarded after assign- 
ment as in custodia legxs (Lord v. 
Meachem, supra). Whether these stat- 
utes are in e^ect insolvency or bank- 
ruptcy acts placing the assigned prop- 
erty and its administration under the 
control of the court depends largely up- 
on their form and interpretation. See: 
U S — Powers v. Blue Grass Bldg. & 
L.' Assn., 86 Fed. 705; Lapp v. Van Nor- 
man, -19 Fed. 406. la. — Hamilton- 
Brown Shoe Co. r. Mercer, 84 Iowa 567, 
51 N W. 415, 35 Am. St. Pep. 331. 
Minn.— In re V vn, 32 Minn. 60, 19 
M W 347; Lesher v. Getman, 28 Minn. 
<)3' 9 N. W. 585. N. D. — State V. 
'■Rose, 4 N. D. ?19, 58 N. W. 514 26 L 
R A. 593. Wis. — Matthews v. Ott, 87 
Wis. 399, 58 N. W. 774. 

Property or-'tte. from the deed and 
schedule but afterwards coming into 
the possession of the assignee is like- 
wise protected frcm the attachment and 
levy. Hasseld V. Seyfort, 105 Ind. 534, 
5 N. E. 675. 

A creditor who has consented to an 
assignment for the benefit of creditors 
has°such security for the payment of 
the debt that he cannot lawfully attach 
the assigned property, at least in the 
absence of an affidavit that his security 
is inadequate or has failed. Ellmg V. 
Kirkpatrick, 6 Mont. 119, 9 Pac. 900. 

By statute in Texas it is provided 
that non-consonting creditors may gar- 
nish the assignee as to any fund which 
may remain after he has executed his 
trust. Schoolher p. Hut chins, 66 Tex. 
324 1 S W. 266; Andrews V. State 
(Tex. App.), 14 S W 1014. See also 
Craddock V. Orand, 72 Tex. 36, It S. 
W 208 (entitled to discovery as to 
condition of estate); Moody V. Carroll, 
71 Tex. 143, 8 S. W. 510, 10 Am. St. 
Rep. 734; Patty- Joiner & Co. V. City 

vol. ni 



Bank, 15 Tex. ' i . App. 475, 41 S. W. 
173. Compare Merrill v. Englesby, 28 
Vt. 150; Rogers v. Vail, 16 Vt. 327. In 
Maine trustee process is allowed by 
statute as to such excess fund, after the 
lapse of a given time. Thomas v. Clark, 
65 Me. 296. 

A statute providing that personal 
property shall in all cases be subject to 
execution on a judgment obtained for 
the purchase price, unless found in the 
hands of a purchaser for value without 
notice of the outstanding claim for the 
purchase price, does not entitle an un- 
paid vendor to levy on property as- 
signed for the benefit of creditors. 
Boltz V. Eagon, 34 Fed. 521. 

15. Mass. — Dewing v. Wentworth, 
11 Cush. 499. N. Y. — McAllaster v. 
Bailey, 127 N. Y. 583, 28 N. E. 591; 
Lawrence V. Bank of the Republic, 35 
N. Y. 320. N. C. — Coffield's Exrs. v. 
Collins, 26 N. C. 486. 

16. See Dork v. Alexander, 117 111. 
330, 7 N. E. 672; Moale v. Buchanan, 
11 Gill & J. (Md.) 314. 

An assignment made before the actual 
levy of a writ of attachment previously 
placed in the hands of the sheriff car- 
ries the property free from any lien 
which might have resulted from the at- 
tachment. Blakely v. Smith, 16 Ky. 
L. Rep. 109, 26 S. W. 584. But the lien 
of an attachment made previous to the 
assignment takes precedence over tho 
latter (Robinson Bros. Shoe Co. v. 
Knapp, 82 Wis. 343, 52 N. W. 431), un- 
less the statute provides that an assign- 
ment avoids attachments levied or liens 
acquired within a jiven time prior 
thereto. Beamer v. Freeman, 84 Cal. 
554, 24 Pac. 169; Cerf v. Oaks, 59 Cal. 
132; Boseli V. Doran, 62 Conn. 311, 25 
Atl. 242. See Fairbanks v. Whitney, 36 
Minn. 305, 30 N. W. 812; Johnson V. 
Bray, 35 Minn. 248, 28 N. W. 504; Alves 
v. Barber, 17 R. I. 712, 24 Atl. 528. 

Where a lien arises upon the plac- 
ing of an execution in the sheriff's 
hands, an assignment subsequent there- 
to is subject to such lien., Mo. — Frost 
v. Wilson, 70 Mo. 664. N. J. — Van 
Waggoner V. Moses, 26 N. J. L. 570; 
Moses V. Thomas, 26 N. J. L. 124. 
N. Y. — Slade v. Van Vechten, 11 
Paige 21. 
Where attachment precedes ratifica- 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 53 



unless the assignment is void or voidable, 17 as where it is in 
fraud of creditors, 18 or is otherwise ineffective; 19 nor are the 



tion of a partnership assignment pre- 
viously executed by one partner, it is 
valid and binding as against the as 
Bignee. Mills v. Miller, 109 Iowa 688, 
SI N. W. 169. 

As to when the lien from an attach- 
ment, judgment or levy arises, see the 
titles "Attachment;" "Judgment." 

The question of the priority in point 
of time of the assignment and the at 
tachment is one of fact for the jury. 
Waples-Platter Co. V. Low, 54 Fed. 93. 

Fractions of a day are considered in 
determining the actual priority of the 
assignment and attachment lien. An- 
gell v. Pickard, 61 Mich. 561, 28 N. W. 
680. 

17. U. S. — Kennedy V. McKee, 142 
U. S. 606, 12 Sup. Ct. 303, 35 L. ed. 
1131; Lapp V. Van Norman, 19 Fed. 406. 
Colo. — Mosconi v. Burchinell, 7 Colo. 
App. 435, 43 Pae. 912. HI. — Finlay v. 
Dickerson, 29 111. 9. la. — Bradley V. 
Bailey, 95 Iowa 745, 64 N. W. 758. Md. 
O'Connell V. Ackerman, 62 Md. 337; 
American Exch. Bank 17. Inloes, 7 Md. 
380. Mass. — Parker v. Kinsman, 8 
Mass. 486; Stevens v. Bell, 6 Mass. 339. 
See Wyles v. Beals, 1 Gray 233. Mich. 
Kendall V. Bishop, 76 Mich. 634, 43 N. 
W. 645. Minn. — Lanpher V. Burns, 77 
Minn. 407, 80 N. W. 361; Tarbox v. 
Stevenson, 56 Minn. 510, 58 N. W. 157; 
May v Walker, 35 Minn. 194, 28 N. 
W. 252. N. Y.— Schlussel V. Willett, 
34 Barb. 615, 12 Abb. Pr. 397, 22 How. 
Pr. 15. N. D. — State f. Rose, 4 N. 
D. 319, 58 N. W. 514, 26 L. R. A. 593. 
Tex. — Simon V. Ash, 1 Tex. Civ. App. 
202, 20 S. W. 719. Vt. — Kimball V. 
Evans, 58 Vt. 655, 5 Atl. 523; Bishop 
f. Trustees of Hart, 28 Vt. 71. Wis. — 
Keep V. Sanderson, 2 Wis. 42, 60 Am. 
Dec. 404. Wyo. — McCord-Brady Co. v. 
Mills, 8 Wyo. 258, 56 Pac. 1003, 46 L. 
R. A. 737. 

But see la. — Hamilton-Brown Shoe 
Co. v. Mercer, 84 Iowa 537, 51 N. W. 
415, 35 Am. St. Rep. 331. Ky. — Rob- 
berts v. Nicklies, 9 Ky. L. Rep. 6ol. 
Wash. — Mansfield v. First Nat. Bank, 
5 Wash. 665, 32 Pac. 789, 999. 

A void assignment does not place the 
property in custodia legi.t. TJ. S. — Lapp 
v. VanNorman, 19 Fed. 406. la. — Brad- 
ley v. Bailey, 95 Iowa 745, 64 N. W. 
758. Minn. — May v. Walker, 35 Minn. 



194, 29 N. W. 252. Wis. — Matthews 
r. ott, 87 Wis. 399, 58 N. W. 774. 
Wyo. — McCord-Brady Co. V. Mills, 8 
Wyo. 25S, 56 Pac. 1003, 46 L. R. A. 
737. 

But see Hamilton-Brown Shoe Co. V. 
Adams, 5 Wash. 333, 32 Pac. 92. 

Estoppel. — A creditor who has par- 
tieipated in the benefits of an assign- 
ment (Md. — Gottschalk r. Smith, 74 
Md. 560, 22 Atl. 401. Mass. — Jones r. 
Tilton, 139 Mass. 418, 1 N. E. 741. Mo. 
Gutz wilier v. Lackman, 23 Mo. 168), 
or treated it as valid (First Nat. Bank 
v. Boyce, 15 Mont. 162, 38 Pac. 829), 
is estopped to deny its validity. 

A statute authorizing trustee process 
against the assignee in a void assign- 
ment where the property is in his pos- 
session does not prevent such process, 
although the property under a void as- 
signment has not been taken possession 
of by him. Avery v. Monroe, 172 Mass. 
132, 51 N. E. 452, 70 Am. St. Rep. 250. 

18. Mo. — Hungerf ord V. Greengard, 
95 Mo. App. 653, 69 S. W. 602. Neb. 
Morehead V. Adams, 18 Neb. 569, 26 
N. W. 242. N. Y.. — Hess v. Hess, 117 
N. Y. 306, 22 N. E. 956; Lux V. David- 
son, 56 Hun 345, 9 N. Y. Supp. 816; 
Jacobs V. Remsen, 35 Barb. 384, 12 Abb. 
Pr 390. N. D. — State v. Rose, 4 N. 
D. 319, 58 N. W. 514, 26 L. R. A. 593. 
Ore. — Dawson v. Coffey, 12 <">-.. 513, 8 
Pac. 838. Wis. — Stannard v. Youmans, 
100 Wis. 275, 75 N. W. 1002; Jones V. 
Alford, 98 Wis. 245, 73 N. W. 1012 
Wyo. — McCord-Brady Co. v. Mills, 8 
Wyo. 258, 56 Pac. 1003, 46 L. R. A. 
737. 

See- U. S. — Reed v. Mclntyre, 98 U. 
S. 507, 25 L. ed. 171. Ala. — Coving- 
ton v Kelly, 6 Ala. 860. Minn.— Simon 
V. Mann, 33 Minn. 412, 23 N. W. 856. 

But see Ky. — Roberts V. Nicklies, 9 
Ky. L Rep. 651. Mich. — Coots v. Rad- 
ford, 47 Mich. 37, 10 N. W. 69. N. Y. 
Smith r. Longmire, 24 Hun 257. Tex. 
Blum r, Welborne, 58 Tex. 157. Wash. 
Mansfield v. First Nat. Bank, 5 Wash. 
665, 32 Pac. 789, 999. 

19. An unrecorded assignment is in- 
sufficient to prevent lawful attachment 
in some states. U. S— Shufeldt v. Jenk- 
ins, 22 Fed. 359. Ala.— Schloss V. In- 
man, 129 Ala. 424, 30 So. 667. CaL — 

Vol. in 



54 ASSIGNMENT FOR TEE BENEFIT OF CREDITORS 

assicmee 20 or the assignor's debtors 21 subject to garnishee process at 
the instance of the assignor's creditors. 

b CoKa*eroI Attack by Attaching or Execution Creditor. -It has 
been held that an assignment valid on its face and made under stat- 
utes which make the proceedings judicial in their nature cannot be 
collaterally attacked by an attaching or execution creditor. 2 - This 

Watkins v. Wilhoit, 35 Pac 646 1. Dak. 

Farmer v. Colban, 4. Dak. 425, 29 N W. 

12 111. — Yates v. Dodge, 23 111. App. 

338, s. c, 123 111. 50, 13 N. E 847 Ind. 

Fordyce v. Pipher, 84 Ind. 86. N. Y.— 

Hardmann v. Bowen, 39 N. Y. 196; 

McBlain V. Speelman, 35 Hun 263; 

Rennie V. Bean, 24 Hun 123. N. C — 

Perry v. Merchants Bank, 70 N. C. 

309 Ohio. — Wambaugh v. Northwes- 
tern Mut. L. Ins. Co., 59 Ohio St. 228, 

52 N. E. 839. Pa. — Huey v. Prince, 

187 Pa. 151, 40 Atl. 982. R. I. — Alves 

v. Barber, 17 E. I. 712, 24 Atl. 528. S. 

D. — Cannon v. Deming, 3 S. D. 421, 53 

N W 863. Tex. — Solinsky v. Lincoln 

Sav..Bank, 85 Tenn. 368, 4 S. W. 836. 
But a reasonable time for recording 

must be allowed. Wise v. Wimer, 23 

Mo. 237. 

But the taking of possession by the 

assignee is a sufficient substitute for re- 
cording. 111.— Feltenstein v. Stein, 157 

HI. 19, 45 N. E. 502. la. — Meeker v. 

Sanders, 6 Iowa 60. Neb. — Miller v. 
Waite, 59 Neb. 319, 80 N. W. 907. 
Ore. — Dawson v. Crossen, 10 Ore. 41. 
Va. — Clark v. Ward, 12 Gratt. 440. 
Wash. — Hamilton-Brown Shoe Co. V. 
Adams, 5 Wash. 333, 32 Pac. 922. 

See Adam3 V. Haskell, 6 Cal. 113, 
65 Am. Dec. 491; McBlain v. Speelman, 
35 Hun 263. But see Hughes v. Elli- 
son, 5 Mo. 463 



The failure of the assignee to qualify 
within the time required by law, as by 
neglecting to give bond (Ky. — Bank 
of Commerce V. Payne, 86 Ky. 446, 8 
S. W. 856. Mich. — Fuller v. Has- 
brouck, 46 Mich. 78, 8 N. W. 697. See 
also Beard V. Clippert, 63 Mich. 716, 
30 N. W. 323. Mo. — Hardcastle v. 
Fisher, 24 Mo. 70. S. C — See Regen- 
stein v. Pearlstein,' 32 S. C. 437, 11 S. 
E. 298, 17 Am. St. Rep. 865. Contra, 
Kingman v. Barton, 24 Minn. 295), or 
failing to file the required inventory 
(Hardcastle v. Fisher, 24 Mo. 70; Maul 
v. Drexel, 55 Neb. 446, 76 N. W. 163), 
will not justify an attachment, espe- 
cially where it is expressly provided 
that euch failure shall not invalidate 



the assignment (Price v. Parker, 11 
Iowa 144). 

Where There Is No Sufiicient Change 
of Possession. — Rogers v. Vail, 16 Vt. 
327. But see Mumper v. Rushmore, 14 
Hun (N. Y.) 591; Mansfield v. First 
Nat. Bank, 5 Wash. 665, 32 Pac 789, 
999. 

20. Ala. — Lightfoot v. Rupert, 38 
Ala. 666. Cal. — Hecht v. Green, 61 
Cal. 269. 111. — Kimball v. Mulhern, 15 
111. 205. Kan. — Case v. Ingersoll, 7 
Kan. 367; Goodin v. Newcomb, 6 Kan. 
App. 431, 49 Pac. 821. Mass.— Mas- 
sachusetts Nat. Bank v. Bullock, 120 
Mass. 86. Neb. — Schlueter v. Raymond 
Bros. & Co., 7 Neb. 281. Pa. — In re 
McDaniel etc. Estate, 180 Pa. 52, 36 
Atl. 567. Tex. — Moody v. Carroll, 71 
Tex. 143, 8 S. W. 510, 10 Am. St. Rep. 
734. 

See also Covington v. Kelly, 6 Ala. 
860. 

21. Fenton v. Edwards, 126 Cal. 43, 
58 Pac. 320, 77 Am. St. Rep. 141, 46 
L. R. A. 832. 

22. la. — McCla,ukless v. Hazen, 98 
Iowa 321, 67 N. W. 256. Minn. — Lan- 
pher V. Burns, 77 Minn. 407, 80 N. W. 
361; Staples v. Schulenburg, ete. Lumb. 
Co., 62 Minn. 158, 64 N. W. 148; St. 
Paul Second Nat. Bank v. Schrank, 43 
Minn. 38, 44 N. W. 524. R. I. — War- 
ner v. Hedley, 1 . I. 357. Wis. — Mc- 
Court v. Bond, 64 Wis. 596, 25 N. W. 
532. 

See Hamilton-Brown Shoe Co. v. Mer- 
cer, 84 Iowa 537, 51 N. W. 415, 35 Am. 
St. Rep. 351; Coots v. Radford, 47 
Mich. 37, 10 N. W. 69. Contra, Zim- 
merman v. Willard, 134 111. 364, 2 N. 
E. 70. 

See also U. S. — Lapp v. Van Nor- 
man, 19 Fed. 406. N. Y. — Hess v. 
Hess, 117 N. Y. 306, 22 N. E. 956; Lux 
v. Davidson, 56 Hun 345, 9 N. Y. Supp. 
816; Jacobs v. Remsen, 35 Barb. 384, 
12 Abb. Pr. 39^ Tex. — Simon v. Ash, 
1 Tex. Civ. App. 202, 20 S. W. 719. 
Wyo. — McCord-Brady Co. v. Mills, 8 
Wyo. 258, 56 Pac. "'003, 46 L. R. A. 
737. 



vol. m 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 55 

rule, however, does not apply to common law assignments. 28 
c. Remedies of Assignee and Assignor. — The remedies which the 
assignee 24 or assignor" 5 have against an illegal attachment or levy 
are elsewhere discussed. 

B. Property not covered by the assignment, 26 such as subse- 
quently acquired property, 27 may however, be proceeded against. 

C. To Set Aside Assignment. — 1. What Creditors May Sue. — 
a. The General Rule. — As a general rule 1 '" only those creditors 29 
who have exhausted their legal remedies 30 are entitled to sue to set 
aside an assignment for the benefit of creditors. That is, a judgment 
must have been obtained, 31 and execution thereon returned unsatis- 
fied. 32 



23. Lanpher v. Burns, 77 Minn. 407, 
80 N. W. 361. 

24. See infra, III, A, 2. 

25. See infra, IV. 

26. Mass. — Foster v. Saco Mfg. Co., 
12 Pick. 451. N. Y. — Warner V. Jaff- 
ray, 96 N. Y. 248, 48 Am. Rep. 616. 
Va. — Miller v. Byers, 99 Va. 163, 37 
S. E. 782. 

See Creager v. Creager, 87 Ky. 449, 
10 Ky. L. Kep. 424, 9 S. W. 380; Patty- 
Joiner & Co. r. Sli'-x-man City Bank, 15 
Tex. Civ. App. 475, 41 S. W. 173. 

Property reserved as exempt, but 
which is not e-empt, may be proceeded 
against. Cator v. Blount, 41 Fla. 138, 
25 So. 283. 

27. Haskins v. Alcott, 13 Ohio St. 
210. 

28. For a detailed discussion of this 
rule and the exceptions to and qualifi- 
cations of it, see the titles "Creditor's 
Suit ; " " Fraudulent Conveyances. ' ' 

29. Only creditors may attack an 
assignment as void because containing 
preferences. First Nat. Bank v. Gar- 
retson, 107 Iowa 196, 77 N. W. 856. 

30. Patchen v. Bofkar, 12 App. Div. 
475, 42 N. Y. Supp. 35. See Caswell v. 
Caswell, 28 Me. 232. But see Loving 
v. Pairo, 10 Iowa 282, 77 Am. Dec. 108. 

31. U. S. — Cates v. Allen, 149 U. S. 
451, 13 Sup. Ct. 883, 37 L. ed. 804. 
Ala. — Pennington v. Woodall, 17 Ala. 
635. Ark. — Hunt v. Weiner, 39 Ark. 
70. Ga. — Johnson v. Farnum, 56 Ga. 
144; Oberholser v. Keefer, 47 Ga. 530. 
111. — Beach v. Bestor, 45 HI. 341; Hea- 
cock v. Durand, 42 111. 230; Greenway 
v. Thomas, 14 111. 271. la. — Loving 
v. Pairo, 10 Iowa 282, 77 Am. Dec. 108. 
Kan. — Tennent v. Battey, 18 Kan. 324. 
Ky. — Moffatt V. Ingham, 7 Dana 495. 
Ma — Caswell v. Caswell, 28 Me. 232. 



Miss. — Berryman v. Sullivan, 13 Smed. 

& M. 65. N. Y. — Bowe v. Arnold, 31 

Hun 256; McElwain V. Willis, 9 Wend. 

548. Ore. — Dawson V. Coffey, 12 Ore. 

513, 8 Pac. 838. S. C. — Ryttenberg t;. 

Keels, 39 S. C. 203, 17 S. E. 441. 

See Tuers v. Tuers, 131 Cal. 625, 63 

Pac. 1008; Spelman v. Freedman, 130 

N. Y. 421, 29 N. E. 765; King v. Baer, 

31 Misc. 308, 64 N. Y. Supp. 228; and 

the title "Fraudulent Conveyances." 
A foreign judgment is insufficient. 

Berryman v. Sullivan, 13 Smed. & M. 
(Miss.) 65; Patchen v. Bofkar, 12 App. 

Div. 475, 42 N. Y. Supp. 35. 
A judgment for costs only, rendered 

after the assignment, is not sufficient. 
Ogden v. Prentice, 33 Barb. (N. Y.) 
160. 

The fact that some creditors are not 
judgment creditors will not defeat a 
suit by a judgment creditor on their 
behalf. State v. Foot, 27 S. C. 340, 3 
S. E. 546. 

32. U. S. — Case v. Beauregard, 101 
U. S. 688, 25 L. ed. 1004. Ark.— Hunt v. 
Weiner, 39 Ark. 7. HI. — Heacock 
v. Durand, 42 111. 230. Me. — Caswell V. 
Caswell, 28 Me. 232. N. Y. — Bowe 
v. Arnold, 31 Hun 256; McElwain v. 
Willis, 9 Wend. 548; Knauth r. Bassett, 
34 Barb. 31. S. O. — Ryttenberg v. 
Keels, 39 S. C. 203, 17 S. E. 441. 

See Freeman's Sav. & Tr. Co. v. 
Earle, 110 U. S. 710, 4 Sup. Ct. 226, 28 
L. ed. 301; Greenway v. Thomas, 14 111. 
271. But see: HI. — Beach v. Bestor, 
45 HI. 341. la. — Loving v. Pairo. 10 
Iowa 282, 77 Am. Dec. 108. N. Y.— 
Wilson v. Forsyth, 24 Barb. 105. 

The creditor need not wait until the 
expiration of the legal period within 
which the process may be returned if a 
return nulla bona has actually been 

vol m 



56 ASSIGNMENT FOB TEE BENEFIT OF CBEDITOBS 



Where the circumstances are such that it is impossible for a cred- 
itor to reduce his claim to judgment, the necessity therefor is dis- 
pensed with, since he is only required to. show that he is without 
legal redress. 33 And where the plaintiff's claim is fully acknowl- 
edged a judgment is unnecessary, 34 The statute may authorize a 
suit to be brought by any general creditor. 36 

b. Estoppel. — A creditor who with knowledge of the facts affecting 
his rights takes such action as to amount to a recognition of the 
validity of the assignment, 36 as by filing his claim with the 



made. KnauJ V. Bassett, 34 Barb. (N. 
Y.) 31. 

33. Greenway v. Thomas, 14 111. 271 
(dictum); Patchen v. Bofkar, 12 App. 
Div. 475, 42 N. Y. Supp. 35 (where it 
appeared that the assignor "was a non- 
resident without other property than 
that assigned, and that no domestic 
judgment could therefore be obtained 
either by substituted service or other- 
wise). 

34. Curtain v. Talley, 46 Fed. 580. 
Where the assignment sets out that 

plaintiff is a creditor, and the amount 
of .the debt due him is undisputed, re- 
duction to judgment is unnecessary. 
Cohen & Co. v. Morris & Co., 70 Ga. 
313. 

35. Ala. — Bromberg Bros. v. Heyer, 
, 69 Ala. 22. Mass. — Bernard v. Bar- 
Ley Myroleum Co., 147 Mass. 356, 17 
N. E. 887. N. M. — Meyer v. Black, 4 
N. M. 190, 16 Pac. 620. N. C — Han- 
cock v. Wooten, 107 N. C. 9, 12 S. E. 
199, 11 L. R. A. 466. Ohio. — Combs 
u. Watson, 32 Ohio St. 228. S. C — 
Meinhard v. Strick 1 nd, 29 S. C. 491, 
7 S. E. 838. W. Va. — Tuft v. Picker- 
ing, 28 W. Va. 332. 

See Peters v. Bain, 133 U. S. 670, 10 
Sup. Ct. 354, 33 L. ed. 696; Sanderson 
v. Stockdale, 11 Md. 563. 

Where the statute makes an asslgn- 
me it containing preferences voiC as to 
"any creditor" not assenting thereto, 
a mortgage creditor may attack it al- 
though his claim is not vet due. Sabi- 
chi v. Chase, 108 Cal. 81, 41 Pac. 29, 
30 L. R. A. 390. 

Not Applicable to Federal Courts. — 
Cates v. Allen, 149 U. S. 451, 13 Sup. 
Ct. 883, 37 L. ed. 804. 

36. XT. S. — Memphis Sav. Bank V. 
Houchens, 115 Fed. 96, 52 C. C. A. 176; 
Johnson v. Rogers, 13 Fed. Cas. No. 
7,4 r 3. Ark. — Martin v. Taylor, o2 
Ark. 389, 12 Z. W. 1011, by signing the 
instrument. M<j. — Chaf ec V. Fourth 
Nat. Bank, 71 Me. 514, 36 Am. Rep. 
345. Mass. — Jones V. Tilton, 139 

vol. in 



Mass. 418, 1 N. E. 741. Mich. — In re 
Smith Middlings P. Co., 86 Mich. 149, 
48 N. W. 864. Minn. — Aberle v. 
Schlichemeir, 51 Minn. 1, 52 N. W. 
974; Scott v. Edes, 3 Minn. 377. Miss- 
Kaufman v. Simon, 80 Miss. 189, 31 So. 
713. N. Y. — Groves v. Rice, 148 N. 
Y. 227, 42 N. E. 664; Rapalee v. Stew- 
art, 27 N. Y. 310. Pa. — Kendall v. 
McClure Coke Co., 182 Pa. 1, 37 Atl. 
823, 61 Am. St. Rep. 688. Tex.— 
Ohio Cultivator Co. v. People's Nat. 
Bank, 22 Tex. Civ. App. 643, 55 S. W. 
765. Vt. — Merrill v. Englesby, 28 Vt. 
150. Wash. — McAvoy v. Jennings, 
39 Wash. 109, 81 Pac. 77. Wis. — In 
re Gilbert, 94 Wis. 108, 68 N. W. 863. 
Can. — Gardner v. Kloepfer, 7 Ont. 603. 
Creditors not named in an assign- 
ment, or those who have not assented 
to it, alone have the Tight to claim 
that it shall inuri to the benefit of all 
the creditors. Sampson v. Jackson, 103 
Ala. 550, 15 So. 893. 

Participation in Proceedings for the 
distribution of the proceeds of a sale 
by the assignee. Horsey v. Chew, 65 
Md. 555, 5 Atl. 466; Lanahan v. La- 
trobe, 7 Md. 268. 

His mere inquiry to determine what 
course of action would be most profit- 
able to him is not sufficient to estop 
him. Hubbard v. McNaughton, 43 
Mich. 220, 5 N. W. 293, 38 Am. Rep. 
176. 

Although a creditor fails to join with 
the other creditors 1j: express assent to 
an assignment, if his conduct is such 
as to make them believe that he ac- 
quiesces therein he will not be per- 
mitted six months thereafter to attach 
the assigned property because of the 
invalidity of the assignment. Woolen 
Co. t?. Longbottom, 143 Fed. 483. 

But a foreign assignment valid where 
made, but void in the forum by virtue 
of statute, may be attacked by a cred- 
itor although he ha^ acquiesced in the 
J assignment in the foreign jurisdiction 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 57 



assignee 37 or otherwise accepting benefits under it, 38 cannot thereafter 
sue to set it aside or take a position inconsistent with its validity. 39 
Claiming the benefit of a part of the assignment estops the creditor 
from attacking the remainder of it. 40 But where the assignment 
reserve* property as exempt which is in fact not exempt, the cred- 
itor is iwc estopped to subject it to his debt by reason of his having 
claimed or accepted his pro rata of the assigned property. 41 The fact 



by presenting his claim there and be- 
coming surety for the assignor. Moore 
v. Church, 70 Iowa 208, 30 N. W. 855, 
59 Am. Rep. 439. But see Chafee v. 
Fourth Nat. Bank, 71 Me. 514, 36 Am. 
Rep. 345; Kendall v. McClure Coke Co., 
182 Pa. 1, 37 Atl. 823, 61 Am. St. Rep. 
688. 

37. U. S. — Frelinghuysen V. Nu- 
gent, 36 Fed. 229. la. — Loomis v. 
Griffin, 78 Iowa 482, 43 N. W. 296. La. 
Lowry V. Commercial Bank, 12 Rob. 
193. Md. — Horsey V. Chew, 65 Md. 
555, 5 Atl. 466. Mich. — In re Smith 
Middlings P. Co., 86 Mich. 149, 48 N. 
TV. 864. Ore. — Kerslake v. Brower, 
Lumb. Co., 40 Ore. 44, 66 Pac. 437. 
Wis. — Keith v. Arthur, 98 Wis. 189, 
73 N. W. 999; In re Gilbert, 94 Wis. 
108, 68 N. W. 863; Boynton Furnace 
Co. v. P^rensen, 1 Wis. 594, 50 N. W. 
773; Littlejohn v. Turner, 73 Wis. 113, 
40 N. W. 621. Compare Segnitz V. 
Garden City, etc. Bkg. Co., 107 Wis. 
171, 83 N. W. 327, 81 Am. St. Rep. 830, 
50 L. R. A. 327. 

Contra. — Mere filing of claim insuf- 
ficient as an estoppel. Koechl v. Lei- 
binger, etc. Brew. Co., 26 App. Div. 573, 
50 N. Y. Supp. 568; Iselin v. Henlein, 
16 Abb. N. C. (N. Y.) 73. See Franzen 
v. Hutchinson, 94 Iowa 95, 62 N. W. 
698; Scott v. Strauss, 14 Ky. L. Rep. 
892. 

Filing Claim and Receiving Divi- 
dends. — Taylor v. Seiter, 100 111. App. 
643, judgment affirmed, 199 111. 555, 65 
N. E. 433. 

38. Ala. — Adler v. Bell, 110 Ala. 
357, 20 So. 83; White V. Banks, 21 Ala. 
705, 56 Am. Dec. 283. Me. — Chafee 
V. New York Fourth Nat. Bank, 71 Me. 
514, 36 Am. Rep. 345. Md. — Moale v. 
Buchanan, 11 Gill & J. 314. Mich. — 
In re Smith Middlings, etc. Co., 86 
Mich. 149, 48 N. W. 864. Minn. — Ol- 
son v. O'Brien, 46 Minn. 87, 48 N. W. 
453; Richards V. W r hite, 7 Minn. 345; 
Scott V. Edes, 3 Minn. 377. Mo. — Mo- 
line Plow Co. v. Wenger, 95 Mo. 207, 
8 S. W. 404; Nanson v. Jacob, 93 Mo. 



331, 6 S. W. 246, 3 Am. St. Rep. 53L 
Pa. — Adlum V. Yard, 1 Rawle 163, 18 
Am. Dec. 608. S. C. — Arnold v. Bai- 
ley, 24 S. C. 493. Tenn. — Smith r. 
Carmack (Tenn. Ch. App.), 64 S. W. 
372. Tex. — Roberson V. Tonn, 76 Tex. 
535, 13 S. W. 385; Whitehill V. Shaw 
(Tex. Civ. App.), 33 S. W. 886; Wright 
V. Euless, 12 Tex. Civ. App. 136, 34 S. 
W. 302. Wash. — Cerf, Schloss & Co. 
V. Wallace, 14 Wash. 249, 44 Pac. 264. 
The mere fact that a subcontractor 
requests the general contractor's as- 
signee to complete the work does not 
constitute such a recognition of the 
assignment as to amount to an estop- 
pel; but such action does have this 
effect when coupled with the additional 
fact that his motive in so doing was 
to secure the performance by assignee 
of the assignor's agreement to dis- 
charge a debt due him from the sub- 
contractor in consideration of the work 
done by the latter. "In order that a 
creditor shall be estopped by any act 
of his from impeaching the validity of 
an assignment, it must appear that he 
has accepted an actual benefit under 
it, or that he has assumed such an at- 
titude as would be inconsistent with 
his taking such a position." Groves 
V. Rice, 148 N. Y. 227, 42 N. E. 664. 

39. First Nat. Bank v. Boyce, 15 
Mont. 162, 38 Pac. 829. See Young v. 
Hail, 6 Lea (Tenn.) 179. 

40. Ala. — Hatch ett v. Blanton, 72 
Ala. 423. Ark. — Friersou v. 3ranch, 
30 Ark. 453. la. — Loomis V. Griffin, 
78 Iowa 482, 43 N. W. 296. Mont. — 
Kleinschmidt v. Steele, 15 Mont. 181, 
38 Pac. 827. Tenn. — Swanson v. Tar- 
kington, 7 Heisk. 612. 

See also Ohio Cultivator Co. r. Peo- 
ple's Nat. Bank, 22 Tex. Civ. App. 643, 
55 S. W. 765. 

41. Cator V. Blount, 41-Fla. 138, 25 
So 283. But see Hasty 's Heirs r. Ber- 
ry, 8 Ky. L. Rep. 55, 1 S. W. 8, dis- 
tinguished in Creager v. Creager, 87 
Ky. 449, 10 Ky. L. Rep. 424, 9 S. W. 
380, holding that a creditor was not 

vol. in 



58 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 



that subsequent to a ratification he acquires other claims against 
the assignor does not give him any new standing to question the 
assignment. 42 

If the assignment is declared void at the suit of other creditors, 
those who have previously assented to it are estopped to ask for a 
receiver to administer the property of the insolvent assignor. 48 As- 
sent to the assignment, however, if given in justifiable 44 ignorance 
of its invalidity, does not estop the creditor from attacking it upon 
the subsequent discovery of his rights, 45 if he tenders back what- 
ever of value he has received under the assignment. 48 But where 
the action of the creditor in filing his claim is taken without inquiry 
as to his rights and has induced corresponding action by others, he 
will not thereafter be permitted to withdraw from the position so 

2. Time To Sue. — Suit must not be unreasonably delayed, or 
it may be defeated by the charge of laches. 48 If not filed until the 
trust has been executed it is too late, 49 except perhaps as to prop- 
erty remaining in the assignee's hands. 50 

3. Parties. — In a suit by one or more creditors to set aside an as- 
signment, other creditors whose interests are identical are proper 51 
but not necessary 52 parties. 

The only necessary parties defendant are the assignor and assignee, 58 



estopped to question a reservation of 
homestead in the assignment by there- 
after accepting benefits under its pro- 
visions. 

42. Groves v. Rice, 75 Hun 612, 
29 N. Y. Supp. 1050, affirmed on this 
point in 148 N. Y. 227, 42 N. E. 664. 

43. Matter of Walker, 37 Minn. 243, 
33 N. W. 852, 34 N. W. 591. 

44. Mere ignorance of tha fraudu- 
lent character of the assignment is not 
sufficient if the creditor have the means 
of knowledge or notice of facts -which 
should put him upon inquiry. Scott v. 
Edes, 3 Minn. 377. 

45. U. S. — Johnson v. Eogers, 14 
Alb. L. J. 427, 13 Fed. Cas. No. 7,408. 
Kan. — Hairgrove v. Millington, 8 
Kan. 480. Kv. — Bank of Commerce V. 
Pavne, 86 Ky. 446, 8 S. W. 856. Minn. 
Scott V. Edes, 3 Minn. 377. N. Y. — 
Stedman v. Davis, 93 N. Y. 32; Buffalo 
Third Nat. Bank v. Guenther, 1 N. Y. 
Supp. 753. 

46. Scott v. Edes, 3 Minn. 377. 
Compare Alabama - Warehouse Co. v. 
Jones, 62 Ala. 550. 

47. Keith v. Arthur, 98 Wis. 189, 73 
N. W. 999. 

48. Md. — Miller v. Matthews, 87 
Md. 464, 40 Atl. 176. Mass. — Leland 
c. Drown, 12 Gray 437. K. T —Kim- 



ball v. Lee, 40 N. J. Eq. 403, 2 Atl. 820. 
See also Descombes v. Wood, 91 Mo. 
196, 4 S. W. 82, 60 Am. Rep. 239; 
Kickbusch v. Corwith, 108 Wis. 634, 
85 N. W. 148. 

49. Hays v. Doane, 11 N. J. Eq. 84; 
McLean v. Prentice, 34 Hun (N. Y.) 
504. 

50. Knauth v. Bassett, 34 Barb. (N. 
Y.) 31. 

51. Ala. — Dimmick v. Register, 92 
Ala. 458, 9 So. 467. Md. — Riley v. 
Carter, 76 Md. 581, 25 Atl. 667, 35 Am. 
St. Rep. 443, 17 L. R. A. 489. N. Y. 
Lentilhon v. Moffat, 1 Edw. Ch. 451. 
N. C — Hancock v. Wooten, 107 N. C. 
9, 12 S. E. 199, 11 L. R. A. 466. 

52. U. S. — Kerrison r. Stewart, 93 
U. S. 155, 23 L. ed. 843. Ga. — Tucker 
v. Zimmerman, 61 Ga. 599. Ky. — 
Roberts v. Phillips, 11 Bush 11. Mass. 
Bernard v. Barney Myroleum Co., 147 
Mass. 356, 17 N. E. 887. N. J.— 
White v. Davis, 48 N. J. Eq. 22, 21 Atl. 
187. N. Y. — Wakeman v. Grover, 4 
Paige 23; Rogers v. Rogers, 3 Paige 
379; Bank of British North America 
v. Suydam, 6 How. Pr. 379; Riggs v. 
Murray, 2 Johns. Ch. 565. N. C — 
Hancock v. Wooten, 107 N. C. 9, 12 S. 
E. 199, 11 L. R. A. 466. 

53. Ark. — Hunt V. Weiner, 39 Ark. 



vol m 



ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 59 



unless certain creditors are preferred in the assignment, in which 
case their adverse interest makes it necessary to join them as de- 
fendants. 54 But it has been held that such preferred creditors are 
only necessary parties where the suit is to defeat the preferences and 
enforce the deed as a general assignment. 56 



70. Mich. — Suydam v. Duquindre, 
Harr. 347. Mont. — Stevenson v. Mat- 
teson, 13 Mont. 108, 32 Pae. 291. N. 
Y. — Lawrence v. Bank of Eepublic, 
35 N. Y. 320; Wakeman v. Grover, 4 
Paige 23; Russell v. Lasher, 4 Barb. 
232; Smith v. Payne, 56 N. Y. Super. 
451, 3 N. Y. Supp. 826. Pa. — Hodge's 
Estate, 1 Ashm. 63. Vt. — Therasson 
t;. Hickok, 37 Vt. 454. 

See State v. Withrow, 141 Mo. 69, 
41 S. W. 980; Passavant v. Bowdoin, 
60 Hun 433, 15 N. Y. Supp. 8. 

The assignee is a necessary party. 
McCutcheon v. Caldwell, 90 Ky. 249, 
13 S. W. 1072; Journeay v. Brown, 26 
N. J. L. 111. 

The assignor's representatives must 
be made parties in their representative 
capacity in case of his death. Amster- 
dam First Nat. Banh v. Shuler, 153 N. 
Y. 163, 47 N. E. 262, 60 Am. St. Rep. 
601. 

A member of the firm making the 
assignment, being a necessary party, 
cannot by filing a disclaimer have the 
suit dismissed as to him. Bromberg 
Bros. v. Heyer, 69 Ala. 22. 

54. Ky. — Stout v. Higbee, 4 J. J. 
Marsh. 632. Miss. — Allen V. Union, 
etc. Bank, 72 Miss. 549, 17 So. 442. N. 
Y. — Chandler v. Powers, 25 Hun 445. 
Tenn. — Masson v. Tarver, 3 Baxt. 290. 

See Hamilton Nat. Bank v. Halsted, 
56 Hun 530, 9 N. Y. Supp. 852; Garner 
V. Wright, 24 How. Pr. 144. 

Preferred creditors are proper par- 
ties defendant. — Ga. — Old Hickory Dis- 
till. Co. v. Bleyer, 74 Ga. 201. N. Y. — 
Genesee County Bank v. Batavia Bank, 
43 Hun 295; Chandler v. Powers, 25 
Hun 445. N. O. — Hancock v. Wooten, 
107 N. C. 9, 12 S. E. 199, 11 L. R. A. 
466. 

55. See Bank of British North 
America v. Suydam, 6 How. Pr. (N. Y.) 
379; Hudson v. Eisenmayer Mill., etc. 
Co., 79 Tex. 401, 15 S. W. 385; Collins 
v. Sanger, 8 Tex. Civ. App. 69, 27 S. W. 
500. 

In Lyons-Thomas Hdw. Co. v. Perry 
Stove Mfg. Co., 88 Tex. 468, 27 S. W. 
100, the Court says: "We believe that 



reason and authority sustain the prop- 
osition that, in a suit to set aside 
such an instrument, the beneficiaries in 
the deeds of trust were not necessary 
parties, and that the trustee represented 
all creditors for the purpose of sustain- 
ing the deeds under which he held for 
their benefit. Railroad Co. v. Butler, 
56 Tex. 511; Ebell v. Bursinger, 70 
Tex. 120, 8 S. W. 77; Kerrison v. Stew- 
art, 93 U. S. 155. The reasons assigned 
in support of the rule requiring bene- 
ficiaries to be made parties where the 
object is to participate in the fund un- 
der the instrument by which the trust 
is created do not apply in this character 
of case. When it is sought to construe 
an instrument and enforce it, the trus- 
tee is entitled to have the rights of all 
the parties interested determined, in or- 
der that he may be protected in the exe- 
cution of the trust. He does not rep- 
resent any of the beneficiaries so far 
as the rights between them and other 
beneficiaries are concerned, but is sup- 
posed to be indifferent in this respect. 
The beneficiaries named in the deed, as 
well as all others entitled to partici- 
pate in the fund, have the right to be 
heard for the purpose of establishing 
their own rigats ; as well as to contest 
the claim of any other asserting a right 
to any part of it. As before said, the 
object of this suit was not to distribute 
under, but to set aside, the deeds of 
trust, and make division according to 
law. In Ebell V. Bursinger, supra, the 
deed of trust conferred such limited 
powers upon the trustee that this court 
held that he was not empowered to in- 
stitute and maintain suits alone with 
reference to the property. The general 
rule is announced in that case that, in 
a suit 'by or against the trustee for 
the recovery of the trust property, the 
beneficiary is a necessary party.' The 
decision recognizes the exceptions to 
this rule, and cites the case of a general 
assignment, in which it is held that the 
assignee may sue or be sued alone so 
far as the possession of the property 
is concerned. In that case the decision 
was placed distinctly upon the ground 

vol m 



60> ASSIGNMENT FOR THE BENEFIT OF CREDITORS 



The failure to object to the noli- joinder of a necessary party is, how- 
ever, a waiver thereof. 56 

4. The bill or complaint must aver the making of the assignment, 57 
the facts justifying its being set aside, 58 as that it is in fraud of cred- 
itors, 59 and the facts showing plaintiff's right to sue- 60 Some courts 
hold' a general averment of the intent to defraud is sufficient, 61 at 
least where an assignment fraudulent on its face is set out in the 



that the trustee had not such power as 
would enable him -to sue alone for the 
property, nor such as would authorize 
a suit against him alone. It cannot be 
doubted that a trustee with the author- 
ity granted by these instruments could 
sue Ifor the possession of the property 
conveyed to him thereby. In Hudson v. 
Elevator Co., 79 Tex. 401, 15 S. W. 
385, it was sought to have an instru- 
ment claimed by the trustee and bene- 
ficiaries named in it to be a mortgage 
declared to be a general assignment, 
and to annul the preference therein pro- 
vided for. Plaintiffs sought to enforce 
this instrument as reformed, and 
claimed under it an interest in the fund 
antagonistic to the named creditors. It 
was held that the creditors named m 
the instrument were necessary parties 
to the suit. We adhere to this as a cor- 
<rect practice in that class of case; and 
in so far as Preston V. Carter, 80 Tex. 
388, 16 S. W. 17, is in conflict with the 
doctrine announced in Hudson v. Ele- 
vator Co. upon this point, the former 
case is overruled." 

56. Hurlbert v. Dean, 2 Abb. Dee. 
(N. Y.) 428, 2 Keyes 97. 

57. Neb. — Morgan v. Bogue, 7 ISeb. 
429. N. Y. — Jessup v. Hulse, 29 Barb. 
539; Wilson V. Forsyth, 24 Barb. 105; 
Mott V. Dunn, 10 How. Pr. 225. N. C. 
Koberts v. Lewald, 107 N. C. 305, 12 S. 
E. 279. 

The delivery and acceptance ot the 
deed need not be averred. Gasper v. 
Bennett, 12 How. Pr. (N. Y., 307. 

58. Descombes v. Wood, 91 Mo. 196, 
4 S. W. 82, 60 Am. Rep. 239 (solvency 
of assigning corporation); Keller v. 
Smith, 20 Tex. Civ. App. 314, 49 S. W. 
263 (that there were no bona fide cre- 
ditors who had accepted under the 
trust). See Miss. — Metcalfe v. Mer- 
chant's Bank, 89 Miss. 649, 41 So. 377. 
N. C — Roberts V. Lewald, 107 N. C. 
305 12 S. E. 279. W. Va. — Bargain 
House v. St. Clair, 58 W. Va. 565, 52 
S. E. 660. 

Vol. Ill 



The facts showing the illegality of 
the assignment must be averred. Met- 
calfe v. Merchant's Bank, 89 Miss. 649, 
41 So. 377. 

Inadequacy of remedy at law must 
be set out. Wilson V. Forsyth, 24 
Barb. (N. Y.) 105. 

Separate Causes of Action. — A com- 
plaint alleging that an assignment is 
null and void on its face, and that it 
was made with intent to hinder, delay 
and defraud the assignor's creditors, 
does not state two causes of action, but 
merely two grounds of setting aside 
the assignment. Pittsfield Nat. Bank 
v. Tailer, 60 Hun 130, 14 N. Y. Supp. 
557. 

Misjoinder of Causes. — See Genesee 
County Bank v. Batavia Bank, 43 Hun 
(N. Y.) 295. 

59. Md. — Riley v. Carter, 76 Md. 
581, 25 Atl. 667, 35 Am. St. Rep. 443, 
17 L. R. A. 489. Neb. — Morgan v. 
Bogue, 7 Neb. 429. N. Y. — Booss u. 
Marion, 59 Hun 615, 12 N. Y. Supp. 
765; Wilson v. Forsyth, 24 Barb. 105; 
Hastings v. Thurston, 18 How. Pr. 530. 
N. C — Roberts v. Lewald, 107 N. C. 
305, 12 S. E. 279. W. Va. — First Nat. 
Bank v. Prager, 50 W. Va. 660, 41 S. 
E. 363. 

That the assignee participated in or 
had knowledge of the assignor's fraud- 
ulent purpose need not be alleged. 
Stevenson v. Matteson, 13 Mont. 108, 
32 Pac. 291. 

60. Case V. Beauregard, 101 TJ. S. 
688, 25 L. ed. 1004. See supra, II, C, 1. 

61. Md. — Riley v. Carter, 76 Md. 
581, 25 Atl. 667, 35 Am. St. Rep. 443, 
19 L. R. A. 489. N. Y. — Durant v. 
Pierson, 8 N. Y. Supp. 904 (alleging 
merely that the assignment was fraud- 
ulent and void and made with intent 
to hinder, delay and defraud credi- 
tors); Jessup V. Hulse, 29 Barb. 539. 
S. C — Verner v. Davis, 26 S. C. 609, 
2 S. E. 114. 

See Pine Cone Lumb. Co. v. White 
Sand Lumb. Co. (Miss.), 38 So. 188. 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 61 



complaint. 62 Others require the facts showing fraud to be averred. " 
In the absence of such a general averment, however, the evidence 
will be confined to the specilic facts alleged. 04 

5. Bill of Particulars. — The defendant may require plaint ill' to 
furnish a bill of particulars, 68 unless he is already in possession of 
the means of ascertaining the facts.' ;0 

6. Injunction and Receiver. — Pending the suit, the sale of the 
assigned property may upon a proper showing be enjoined, 91 and a 
receiver may be appointed. 08 

7. Trial and Judgment. — a. Generally. — Whether an assignment 
is fraudulent on its face is a question of law for the court ; oa but 
where the alleged fraud can only be determined from evidence, it 
becomes a question of fact to be determined by the jury or by the 
judge acting as such, 70 unless the evidence is wholly insufficient as 
a matter of law. 71 Only those matters involved in the suit will be 
determined, 72 though the court may under a general prayer for re- 



62. Hastings r. Thurston, 18 How. 
Pr. (N. Y.) 530. 

63. Sullivan v. Sullivan, Brunn. Col. 
Cas. 642, 23 Fed. Cas. No. 13,598. See 
Fogg V. Blair, 139 U. S. 118, 11 Sup. 
Ct. 476, 35 L. ed. 104; Van Weel v. 
Winston, 115 U. S. 228, 6 Sup. Ct. 22, 
29 L. ed. 384; Keller V. Smith, 20 Tex. 
Civ. App. 314, 49 S. W. 263; and the 
titles "Fraud;" "Fraudulent Convey- 
ances." 

Where the facts averred show fraud, 
a specific allegation of an intent to de- 
lay and defraud creditors is unneces- 
sary. Stafford v. Merrill, 62 Hun 144, 

16 N. Y. Supp. 467. 

A demurrer is not a proper method 
of objecting to the failure to set out 
the facts, in some jurisdictions. Mott 
V. Dunn, 10 How. Pr. (N. Y.) 225. 

64. East River Nat. Bank v. Adams, 
4 X. Y. Supp. 366, 21 N. Y. St. 880. 

65. Claflin v. Smith, 13 Abb. N. C. 
(N. Y.) 205. 

66. Passavant v. Cantor, 21 Abb. N. 
C. 259, 48 Hun 546, 1 N. Y. Supp. 574. 

67. Preiss v. Cohen, 112 N. C. 278, 

17 S. E. 520. See also Oliver v. Victor, 
74 Ga. 543. 

Where it does not appear either that 
the assignees are insolvent or that there 
is danger of the dissipation of the 
property. City Nat. Bank v. Danham, 

18 Tex. Civ. App. 184, 4' S. W. 605. 
Although fraud is denied l>y the 

answer, the injunction .Jay be retained 
if the assignment on its face contains 
indications of fraud. Hastings v. Pal- 
mer, 1 Clark Ch. (N. Y.) 52. 

68. Oliver v. Victor, 74 Ga. 543. 



69. U. S. — Means V. Montgomery, 
23 Fed. 421. Mass. — Harris r. Sum- 
ner, 2 Pick. 129. Mich. — Pierson r. 
Manning, 2 Mich. 445. Mo. — Johnson 
v. McAllister, 30 Mo. 327. Mont. — 
Eosenstein v. Coleman, 18 Mont. 459, 
45 Pac. 1081. N. Y. — Sheldon v. 
Dodge, 4 Denio 217. S. C. — Stewart V. 
Kerrison, 3 S. C. 266. Tex. — Bailev v. 
Mills, 27 Tex. 434. W. Va. — Lande- 
man v. Wilson, 29 W. Va. 702, 2 S. E. 
203. 

70. U. S. — Bickham v. Lake, 51 Fed. 
892. Conn. — Warner Glove Co. v. Jen- 
nings, 58 Conn. 74, 19 Atl. 239. 111. — 
Nimmo V. Kuykendall, 85 111. 476. Ind. 
Wynne v. Glidewell, 17 Ind. 446, fraud- 
ulent intent. Mich. — Angel] P. l'ick- 
ard, 61 Mich. 561, 28 N. W. 6S0. Minn. 
Mower v. Hanford, 6 Minn. 535. Mo. 
State v. Keeler, 49 Mo. 548; Johnson 
v. McAllister's Assignee, 30 Mo. 327 
N. Y. — Fay V. Grant, 53 Hun 44. 5 
N. Y. Supp. 910, affirmed, 126 N. Y. 624, 
27 N. E. 410; Mathews r. Poultney. 33 
Barb. 127; Cunningham v. Freeborn, 3 
Paige 557. N. C. — Hodges v. Lassiter. 
96 N. C. 351, 2 S. E. 923; Hardy v. 
Skinner, 31 N. C. 191. Tex. — Van 
Hook v. Walton, 28 Tex. 59; Baldwin 
v. Peet, 22 Tex. 708. 75 Am. Dec 

See the title's "Fraud;" "Fraudu- 
lent Conveyances." But see Wright i. 
Lee, 10 S. D. 263, 72 N. W-. 895. 

71. Friedenwald Co. V. Sparger, 12S 
N. C. 446, 39 S. E. 64. 

72. See Dudensing v. Jones, 27 Misc. 
69, 58 N. Y. Supp. 178, attachments lev- 
ied by the assignee are not affected by 
the suit. 

VoL ni 



62 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 



lief, if it finds the assignment to be valid, enforce the trast thereby 
created. 7 * 

b. Costs, as in other equitable canses, are adjusted in the discretion 
of the court in accordance with the equities of the case. 74 

c. Judgment. — The judgment should not go against the assignee 
personally, unless he is a party to the fraud; 75 it is binding, how- 
ever upon all persons represented by him, though they are not 
parties of record. 76 

8. Appeal. — On appeal objections which should have been raised 
below cannot be' made for the first time. 77 

D. Undeb Assignment. — 1. Generally. — The creditor's delay in 
accepting the provisions of an assignment will not prevent him from 
claiming its benefits, 78 unless it extends beyond the time fixed by the 
deed itself within which assent must be manifested; 79 and even in 
the latter event his excusable ignorance or mistake may excuse a 
tardy acceptance. 80 

Assent by creditors preferred in the assignment is unnecessary where 
the instrument does not require it. 81 

Estoppel. — In some jurisdictions a creditor may estop himself from 
claiming the benefits of an assignment by taking a position incon- 



73; Right to Alternative Belief. — 
Hull v. Evans, 22 Ky. L. Rep. 1118, 59 
8. W. 851. Compare infra, II, D, 3. 

74. Matter of Barnes, 4 Misc. 136, 23 
N. Y. Supp. 600; Demarest v. Wynkoop, 
3 Johns. Ch. (N. Y.) 129; Murray v. 
Ballou, 1 Johns. Ch. 566; Nicoll v. 
Huntington, 1 Johns. Ch. 166; Lupin v. 
Marie, 2 Paige (N. Y.) 169; Cunning- 
ham «. Freeborn, 11 Wend. 240; 
Mackie t>. Cairns, 5 Cow. 585. 

Costs and a reasonable attorney's fee 
were allowed out of the proceeds, where 
the complainant, a non-preferred credi- 
tor, although the assignment was held 
good, defeated a fictitious claim and 
saved the property for preferred credi- 
tors. Martin-Brown Co. v. Morris, 1 
Ind. Ter. 495, 42 S. W. 423. So also 
where the assignee's attorney secured 
the remanding of the case, which com- 
plainant had removed to a federal 
court, a similar allowance was made. 
Tishomingo Sav. Inst. v. Allen, 76 Miss. 
114, 23 So. 305. 

Where the assignee is unsuccessful in 
resisting a suit to set aside the assign- 
ment as fraudulent, his costs and dis- 
bursements will not be allowed out of 
the estate. Mead v. Phillips, 1 Sandf. 
Ch. (N. Y.) 83; Mayer v. Hazard, 49 
Hun (N. Y.) 222 (he may demand in- 
demnity from the creditors as a condi- 
tion of interposing a defense). See also 

VoL m 



Tishomingo Sav. Inst. v. Allen, 76 Miss. 
114, 23 So. 305. 

Where a creditor has reasonable 
grounds for attacking an assignment 
costs will not be taxed against him. 
Cunningham v. Freeborn, 11 WSnd. (N. 
Y.) 240. 

75. Rouse ©. Bowers, 108 N. C. 182. 
12 S. E. 985. 

76. Rejall v. Greenhood, 92 Fed. 945, 
35 C. C. A. 97 (beneficiaries under the 
trust) ; Russell V. Lasher, 4 Barb. (N. 
Y.) 232 (creditors preferred by the as- 
signment). But see supra, II, C, 3, and 
In re Thoesen, 62 App. Div. 87, 70 N. 
Y. Supp. 924. 

77. Kan. — Sco+t v. Beard, 5 Kan. 
App. 560, 47 Pac. 986. Tex. — Carter- 
Battle Grocer Co. v. Jackson, 18 Tex. 
Civ. App. 353, 45 S. W. 615. Tenn.— 
Forshee v. Willis, 101 lenn. 450, 47 S. 
W. 703, that exemptions were not al- 
lowed. 

78. Beall v. Lowndes, 4 S. C. 258; 
Tennant v. Stoney, 1 Rich. Eq. (S. C.) 
222. 

79. Dedham Bank V. Richards, 2 
Mete. (Mass.) 105; Battles v. Fobes, 21 
Pick. (Mass.) 239. See Hudson v. Park- 
er Mach. Co., 173 Mass. 242, 53 N. E. 
867. 

80. De Caters v. Le Ray de Chau- 
mont, 2 Paige 'N. Y.) 490. 

81. New England Bank P. Lewis, 8 
Pick. (Mass.) 113, 



ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 63 



sistent therewith, 82 or by attacking its validity. 88 In other jurisdic- 
tions an attempt to set aside the assignment does not prevent the 
creditor from thereafter coming in under it and claiming its bene- 
fits. 84 Neither the reducing of the claim to a judgment 88 nor the 
pursuit of property not covered by the assignment 88 raises such an 
estoppel. 

2. Allowance, Distribution and Payment of Claims. — a. Finality. 
An assignee's allowance or disallowance of a claim is in the nature 
of a judgment 87 and is final unless an appeal is made to the proper 
court, 88 or a suit brought to compel an allowance, 89 in accordance 
with procedure provided by statute. 90 

b. Proceedings for Distribution or Payment. — Creditors may main- 
tain a suit to compel the assignee to account and to distribute the 
trust fund. 91 Where they are already parties to a suit by the as- 
signee wherein the property has been sold, the court may order the 
distribution of the proceeds amongst them in the same suit. 92 Where 

Wash. — Anderson v. Kisdon-Cahn Co., 
13 Wash. 494, 43 Pac. 337. 

See Clark v. Gibboney, 3 Hughes 391, 
5 Fed. Cas. No. 2,821. 

85. Eichmond Sec. Nat. Bank v. 
Townsend, 114 Ind. 534, 17 N. E. 116. 

86. Miller v. Byers, 99 Va. 163, 37 
8. E. 782. See Patty-Joiner & Co. v. 
Sherman City Bank, 15 Tex. Civ. App. 
475, 41 S. W. 173. 

87. Eppright v. Kauffman, 90 Mo. 
25, 1 S. W. 736. 

After allowance the original debt ia 
merged therein and no action can be 
brought upon it. Elsea v. Pryor, 87 
Mo. App. 157; Rice v. McClure, 74 Mo. 
App. 379; Kendrick t;. Guthrie Mfg. 
Co., 60 Mo. App. 22. 

88. American Nat. Bank v. Branch, 
57 Kan. 27, 45 Pac. 88; State v. Kan- 
sas Ins. Co., 32 Kan. 655, 5 Pac. 190; 
Oberlin Loan, etc. Co. v. Kitchen, 8 
Kan. App. 445, 57 Pac. 494. 

89. Osborn v. Colwell, 17 B. L 196, 
21 Atl. 103, suit in equity. 

90. See Kohn v. Hine, 7 Kan. App. 
776, 54 Pac. 117; Hayward v. Graham 
Book, etc. Co., 59 Mo. App. 453; Board 
of St. Louis Pub. Schools v. Broadway 
Sav. Bank, 12 Mo. App. 104; Real 
Estate Sav. Inst. v. Fisher, 9 Mo. App. 
593. 

91. Greene v. Sisson, 2. Curt. 17, 10 
Fed. Cas. No. 5,768. See also Con- 
rey v. His Creditors, 8 La. Ann. 371, 
and infra, II, D, 3. 

92. Lehman v. Tallassee Mfg. Co., 
64 Ala. 567, without the filing of a 



82. Ark. — Adler-Goldman Com. Ce. I 
v. People's Bank, 65 Ark. 380, 46 S. W 
536. Colo. — Beif eld v. Martin, 4 Colo. 
App. 578, 37 Pac. 32. Ind. — Combs v. 
Union Tr. Co., 146 Ind. 688, 46 N. E. 
16. Mass. — New England Bank v. 
Lewis, 8 Pick. 113. Mich. — Farwell v. 
Myers, 59 Mich. 179, 26 N. W. 328. Mo. 
Valentine v. Decker, 43 Mo. 583. N. H. 
Fellows v. Greenleaf, 43 N. H. 421. Pa. 
Geist's Appeal, 104 Pa. 351; Williams' 
Appeal, 101 Pa. 474. Tenn. — Farqu- 
harson v. McDonald, 2 Heisk. 404. Tex. 
Moody V. Templeman, 23 Tex. Civ. App. 
3747 56 S. W. 588. Vt. — Therasson v. 
Hickok, 37 Vt. 454. 

83. Ga. — Wright v. Zeigler, 70 Ga. 
501. Ky. — Vernon v. Morton, 8 Dana 
247. Ore. — Kerslake v. Brower, 
Lumb. Co., 40 Ore. 44, 66 Pac. 437. 
Tenn. — O 'Bryan v. Glenn, 91 Tenn. 
106, 17 S. W. 1030, 30 Am. St. Rep. 
862. Tex. — Lovenberg v. National 
Bank, 67 Tex. 440, 2 S. W. 874, 5 S. W. 
816. 

See Mills v. Parkhurst, 126 N. Y. 89, 
26 N. E. 1041, 13 L. R. A. 472. 

84. Ala. — Jones v. Burgess, 115 Ala. 
700, 19 So. 851. Ia. — Matter of Hob- 
son, 81 Iowa 392, 46 N. W. 1095, 11 
L. R. A. 255. Mass. — New England 
Bank v. Lewis, 8 Pick. 113. Minn. — 
Matter of Van Norman, 41 Minn. 494, 
43 N. W. 334. Mo. — Eppright v. Kauff- 
man, 90 Mo. 25, 1 S. W. 736. N. Y. — 
Sternfeld v. Simonson, 44 Hun 429; 
Jewett t?. Woodward, 1 Edw. Ch. 195. 
Va. — ClArk v. Ward, 12 Gratt. 440. 



vol. m 



64 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 



a dividend has been declared, 93 or all other claims have been satis- 
fied 94 a creditor may sue the assignee for his share in the assets. In 
such a suit the assignor is not a necessary party. 95 

3. To Enforce Trust. — a. Equitable Bemedy. — In case of the 
neglect or refusal of the assignee to perform his trust a creditor may 
bring suit to compel performance. 96 The remedy is equitable rather 



cross-bill by the creditors asking for 
such relief. 

93. Cal. — Lockwood v. Canfield, 20 
Cal 126. M.— Hexter v. Loughry, 6 
111 'App. 362. Neb. — Nuckolls v. Tom- 
lin, 9 Neb. 353, 2 N. W. 875. N. Y.— 
Peck v. Randall, 1 Johns. 165. Pa. — 
Push v. Good, 14 Serg. & R. 226; Mat- 
ter of Latimer, 2 Ashm. 520. 

See Ward v. Lewis, 4 Pick. (Mass.) 

Assumpsit. — Brown v. Bissell, Dougl. 
(Mich.) 273. 

Mandamus will not lie to secure pay- 
ment where the creditor's right to im- 
mediate payment has not been fully de- 
termined. Hulse v. Marshall, 9 Mo. 
App.. 148. 

Penalty for Non-Payment. — The 
statute may provide a penalty for fail- 
ure to pay a dividend, recoverable by 
a motion in the assignment proceedings. 
Murdock v. Priest, 36 Mo. App. 399. 

94. Ala. — Pinkson V. Brewster, 14 
Ala 315. Mass. — Frost v. Gage, 1 Al- 
len 262; Fitch V. Workman, 9 Mete. 
517; New England Bank v. Lewis, 8 
Pick. 113. Mich. — Clark V. Craig, 29 
Mich. 398. N. Y. — Ludington 's Peti- 
tion, 5 Abb. N. C. 307. 

95. Scarf v. Johnson, 3 Wills. Civ. 
Cas., § 399. 

96. U. S. — Thompson v. Eainwater, 
49 Fed. 406, 4 TJ. S. App. 217, 1 C. C. 
A. 304. Ala. — Colgin v. Redman, 20 
Ala. 650. Ga. — Bell v. McGrady, 32 
Ga. 257; McDougald v. Dougherty, 11 
Ga. 570; Jones v. Dougherty, 10 Ga. 
273. 111. — Preston v. Spaulding, 18 
111. App. 341. Ky.— West v. Gribben, 
23 Ky. L. Rep. 311, 62 S. W. 869; 
House V. Gebhart, 12 Ky. L. Rep. 843; 
Gerst v. Turley, 7 Ky. L. Rep. 217. 
Mass. — Andrews V. Tuttle-Smith Co., 
191 Mass. 461, 78 N. E. 99; Noyes V. 
West, 3 Cush. 423. Mich. — Burnham 
v. Haskins, 72 Mich. 235, 40 N. W. 
327; Sweetzer V. Higby, 63 Mich. 13, 
?9 N. W. 506; Wilhelm v. Bvles,, 60 
^tich. 561, 27 N. W. 847, 29 N. W. 113. 
Minn. — Goncelier v. Foret, 4 Minn. 13. 
Miss. — Wright v. Henderson, 7 How. 



539. Neb. — Wilson v. Coburn, 35 Neb. 
530, 53 N. W. 466; Nuckolls V. Tomlin, 
9 Neb. 353, 2 N. W. 875. N. J. — White 
V. Davis, 48 N. J. Eq. 22, 21 Atl. 187; 
Pillsbury V. Kingon, 33 N. J. Eq. 287. 
N. C. — Ingram v. Kirkpatrick, 41 N. 
C. 463, 51 Am. Dec. 428. Ohio. — Men- 
gert V. Brinkerhoff, 67 Ohio St. 472, 
66 N. E. 530; Maas v. Miller, 58 Ohio 
St. 483, 51 N. W. 158. Pa. — Fallon's 
Appeal, 42 Pa. 235; Seal v. Duffy, 4 
Pa. 274, 45 Am. Dec. 691; Read v. Rob- 
inson, 6 Watts & S. 329. R. I. — Pea- 
body v. Tenney, 18 R. I. 498, 30 Atl. 
456. S. C — Brooks v. Brooks, 12 S. 
C. 422. Term. — Shyer v. Lockhard, 2 
Tenn. Ch. 365; Gait v. Dibrell, 10 Yerg. 
146; Weir V. Tannehill, 2 Yerg. 57. 
Tex. — Mcllhenny Co. v. Todd, 71 Tex. 
400, 9 S. W. 445, 10 Am. St. Rep. 753. 
See Howell v. Moores, 127 111. 67, 19 
N. E. 863; Timberlake v. Moore, 106 
Va. 668, 56 S. E. 571. 

Where the assignor is solvent the 
creditors cannot sue the assignee in 
equity. "No creditor has any lien up- 
on or interest in it (the assigned prop- 
erty), unless it can be said that the 
creditors of any solvent debtor are in- 
terested in the debtor's estate. Under 
such circumstances the trustee is re- 
sponsible, not to the creditors of the 
company, but to the company itself; 
and if he pays out the money of the 
company he does it at his peril. There 
is no occasion to invoke the aid of 
equity to reach the fund in the defend- 
ant 's hands. The liability sought to be 
established is not against the fund, but 
against the owner of tiie fund." Ames 
& Harris V. Sabin, 107 Fed. 582. 

The necessity of applying for leave 
to file the suitj where the statute pro- 
vides for such an application, is not 
waived if no objection is made before 
answering fully to the merits. Funke 
V. Cone, 65 Mich. 581, 32 N. W. 826. 

Jurisdiction. — The suit should be 
brought in the state where the assign- 
ment is made and accepted. In re 
Browning, 66 N. J. Eq. 302, 57 Atl. 
1869. 



vol. in 



ASSIGNMENT FOB TEE BENEFIT OF CBEDITOBS 65 



than legal in its nature, 97 and is open to any creditor who is a bene- 
ficiary under the trust. 08 It is not necessary that the creditor should 
have reduced his claim to judgment, the rule in this respect differ- 
ing from that applied in case of an ordinary creditor's bill." Al- 
though a suit is primarily filed to set aside the assignment, the 
court, if it holds the deed to be valid, may in the same suit enforce 
the trust created thereby. 1 

b. Time To Sue. — The complainant must not be guilty of laches, 
but must commence his suit within the statutory period, 2 which, 
however, does not begin to run until the termination or repudiation 
of the trust. 3 

c. Parties. — (I.) Plaintiff. — While the suit should be on behalf 
of all the creditors, who may thereafter become parties, it is not 



97. Hexter v. Loughry, 6 111. App. 
362; Bishop V. Houghton, 1 E. D. Smith 
(N. Y.) 566 (even under the code pro- 
cedure). See Terry v. Tubman, 92 TJ. 
S. 156, 23 L. ed. 537; Beard V. Clippert, 
63 Mich. 716, 30 N. W. 323. 

An action at law by a creditor is 
only proper where he has become en- 
titled t* a specific sum which has been 
set aside for the payment of his claim 
by virtue of a dividend declared by the 
assignee (Hexter v. Loughry, 6 111. App. 
362), or where the latter has paid all 
other claims in full and has a surplus 
sufficient to pay plaintiff but refuses to 
do so. Fitch v. Workman, 9 Met. 
(Mass.) 517. 

An action for conversion cannot be 
maintained by a creditor against an as- 
signee for the amount of his debt upon 
allegation and pfoof that defendant 
had converted the assigned estate and 
that the value of the estate was suffi- 
cient to pav plaintiff and all other cred- 
itors. De Walt l?. Zeigler, 9 Tex. Civ. 
App. 82, 29 S. W. 60. 

98. Putnam v. Timothy Dry-Goods & 
C. Co., 79 Fed. 454; Weir V. Tannehill, 

2 Yerg. (T<mn.) 57 (though not a party 
to the deed). See also Noyes v. West, 

3 Cush. (Mass.) 423. 

Creditors whose claims have been 
allowed may sue, but those who have 
not presented their claims may not sue, 
since they are not entitled to share in 
the benefits of the assignment. Louch- 
eim v. Casperson, 61 N. J. Eq. 529, 48 
Atl. 1107. 

99. Mich. — B. Brockett & Sons v. 
Leivis, 144 Mich. 560, 108 N. W. 429. 
Minn. — Goncelier v. Foret, 4 Minn. 13. 



N. T. — Spelman v. Freedman, 130 N. 
Y. 421, 29 N. E. 765. 

See Kalmus v. Ballin, 52 N. J. Eq. 
290, 28 Atl. 791, 46 Am. St. Rep. 520; 
Brooks v. Brooks, 12 S. C. 422, 461. 

1. Lexington L., etc. Ins. Co. v. Page, 
17 B. Mon. (Ky.) 412, 66 Am. Dec. 165 
(where such alternative relief was 
prayed for); Davis r. White, 49 N. J. 
Eq. 567, 25 Atl. 936 (under the prayer 
for general relief). See also Hull r. 
Evans, 22 Ky. L. Kep. 1118, 59 S. W. 
851. 

Contra. — A bill seeking to set aside 
a conveyance as fraudulent cannot 
properly ask in the alternative that the 
deed be declared to be and enforced 
as a general assignment for the benefit 
of all creditors. Moog V. Talcott, 72 
Ala. 210, following Lehman v. Meyer, 
67 Ala. 396, overruling Crawford v. 
Kirksey, 50 Ala. 590. 

2. 111. — Gibson v. Bees, 50 HI. 383. 
Mass. — Andrews v. Tuttle-Smith Co., 
191 Mass. 461, 78 N. E. 99. Pa.— 
Adlum v. Yard, 1 Rawle 163, 18 Am. 
Dec. 608. S. C. — Martin v. Price, 2 
Rich. Eq. 412. Tex. — Mr-Cord V. Na- 
bours, 101 Tex. 494, 109 S. W. 913, 111 
S. W. 144. 

See Shyer r. Lockhard, 2 Tenn. Ch. 
365. 

3. Andrews V. Tuttle-Smith Co., 191 
Mass. 461, 78 N. E. 99. See Jackson 
v. Cornell, 1 Sandf. Ch. (N. T.) 348. 
See the title "Trusts and Trustees." 

There is no cause of action against 
the trustee until he has violated the 
trust. Dimmock, V. Bixby, 20 Pick. 
(Mass.) 368. 

Vol. Ill 



66 ASSIGNMENT FOR THE BENEFIT OF CREDITORS 



necessary to join them in the first instance, 4 though it is proper and 
desirable that it should be done. 6 

In a suit by one or more creditors to have an assignment giving 
preferences declared a general assignment for the benefit of all 
creditors, those creditors who are given a preference over plaintiffs 
by the terms of the instrument are necessary parties, their interests 
being antagonistic. 6 

(II.) Defendant. — Where there is more than one assignee all should 
be joined as defendants, though some are innocent of wrongdoing. 7 
The assignee's sureties 8 and third persons who have profited at the 
expense of the complaining parties through the alleged maladmin- 
istration may properly be joined as defendants. 9 

(in.) An objection for non-joinder must be properly raised by demur- 
er or answer, or it is waived. 10 

(IV.) Intervention. — A creditor who has not been made a party 
may intervene for the purpose of sharing in the trust fund, upon 
the payment of his proportionate share of the costs and disburse- 
ments. 11 



4. U. S. — Putnam v. Timothy Dry- 
Goods & Carp. Co., 79 Fed. 454; Door 
v. Gi'bboney, 3 Hughes 382, 7 Fed. Cas. 
No 4,006. Mich. — Wilhelm v. Byles, 
60 Mich. 561, 27 N. W. 847, 29 N. W. 
113, statute permits suit by a credi- 
tor Minn. — Goncelier v. Ferret, 4 
Minn. 13. N. Y. — Crouse v. Frothing- 
ham, 97 N. Y. 105; Wakeman v. Grover, 
4 Paige 23; Lewis v. Hake, 42 Hun 
542. N. C — Patton v. Bencini, 41 N. 
C. 204. Tex. — Blum v. Wettermark, 
56 Tex. 80. n ^ 

See Bell v. McGrady, 32 Ga. 257; 
Brooks v. Peck, 38 Barb. (N. Y.) 519; 
Bishop v. Houghton, 1 E. D. Smith (N. 
Y.) 566. But see Barrett v. Brown, 86 
N. C. 556; Geisse v. Beall, 3 Wis. 367, 
393. Compare Hunt v. Weiner, 39 Ark. 
70, and supra, II, C, 3. 

The interest of the creditors being 
alike, it is sufficient that some sue on 
behalf of themselves and the others. 
Lochte v. Blum, 10 Tex. Civ. App. 385, 
SO S. W. 925. See De Walt v. Zeigler, 
9 Tex. Civ. App. 82, 29 S. W. 60. 

Preferred creditors need not be made 
parties to a bill by a general creditor 
which concedes their right to be first 
paid. Page v. Olcott, 28 Vt. 465. 

5. TJ. S. — Greene v. Sisson, 2 Curt. 
171, 10 Fed. Cas. No. 5,768. Ind.— 
Wright V. Mack, 95 Ind. 332. N. Y. — 
Crouse V. Frothingham, 97 N. Y. 105. 
N. C — Symons v. Eeid, 58 N. C. 327. 

See also Conrey v. His Creditors, 8 
La. Ann. 371. 



All creditors must be made parties 
or one must sue on behalf of all others 
who may come in. 

Me. — Haughton v. Davis, 23 Me. 28. 
Mass. — Bryant v. Bussell, 23 Pick. 
508; Dimmock v. Bixby, 20 Pick. 368. 
N. Y. — Wakeman v. Grover, 4 Paige 
23; Bank of Brit. N. Am. v. Suydam, 
6 How. Pr. 379. 

See also, Bouve v. Cottle, 143 Mass. 
310, 9 N. E. 654; Johnson v. Johnson, 
120 Mass. 465. 

Amendment to bring in other cred- 
itors. Haughton v. Davis, 23 Me. 28; 
Bryant v. Bussell, 23 Pick. (Mass.) 508. 

6. Ark. — Hunt v. Weiner, 39 Ark. 
70. N. Y. — Wakeman v. Grover, 4 
Paige 23. Tex. — Hudson v. Eisen- 
mayer Mill, etc. Co., 79 Tex. 401, 15 S. 
W. 385. 

7. Andrews v. Tuttle-Smith Co., 191 
Mass. 461, 78 N. E. 99. 

8. Blum v. Wettermark, 56 Tex. 80. 

9. Andrews v. Tuttle-Smith Co., 191 
Mass. 461, 78 N. E. 99 (the bill is not 
rendered multifarious by such joinder) ; 
Blum v. Wettermark, 56 Tex. 80. See 
Loucheim v. Casperson, 61 N. J. Eq. 529, 
48 Atl. 1107. 

10. Page v. Olcott, 28 Vt. 465; Gun- 
dry V. Vivian, 17 Wis. 436. 

11. Martin v. Eainwater, 56 Fed. 7. 
But see Lewis v. Hake, 42 Hun (N. Y.) 
542, denying a petition by other cred- 
itors to be permitted to intervene, on 
the ground that such intervention was 
unnecessary, the suit being for tto 



vol. in 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 67 



d. Bill or Complaint. — The bill or compaint must set forth the 
facts showing plaintiff's right to sue, 12 the defendant's dereliction, 13 
and all other facts essential to the cause of action. 14 

e. Appointment of Receiver. — In a suit to compel the assignee to 
perform his trust the creditors may ask for the appointment of a 
receiver. 15 

f . Reference. — In such a suit a reference should be directed where 
necessary. 16 

E. To Set Aside Prior Fraudulent Conveyance. — 1. Right of 
Creditor. — In the absence of a statute the right to sue to set aside 
a conveyance by the assignor prior to the assignment, as in fraud of 
creditors, is vested in the creditors rather than in the assignee, 17 who 



benefit of all creditors and the peti 
tioners having the right to prove their 
claims before the referee. 

12. Presentation of his claim within 
the time prescribed by law must be 
averred by complainant. Peabody v. 
Tenney, 18 R. I. 498, 30 Atl. 456. 

Averment of Assent to Deed. — 
Where a bill is filed by creditors to 
enforce the trust created by an as- 
signment providing that the creditors 
must assent thereto within six months, 
an averment by complainants that 
they have assented to the provisions of 
the deed is a sufficient allegation of 
compliance with the deed within the 
time prescribed. Colgin v. Eedman, 20 
Ala. 650. But see Shyer v. Lockhard, 
2 Tenn. Ch. 365. 

13. See Page t;. Olcott, 28 Vt. 465. 

A creditor seeking to compel the as- 
signor to turn over his alleged share 
of the assets must aver that sufficient 
property was received to pay his claim 
and must set out the provisions of the 
assignment as to J he performance of 
the trust. Nuckolls v. Tomlin, 9 Neb. 
353, 2 N. W. 875. 

14. See Blum v. Wettermark, 56 
Tex. 80, containing the substance pf a 
bill. 

The failure to describe the defend- 
ant as assignee in the title of the 
cause is immaterial where he is sued 
in fiduciary capacity as such. Gundry 
v. Vivian, 17 Wis. 436. 

Petition based upon fraudulent ap- 
propriation of the property of an estate 
through a pretended sale, held suffi- 
cient against general demurrer. Mc- 
Cord v. Nabours, 101 Tex. 494, 109 S. 
W. 913. 

15. U. S. — Bell v. Ohio Life Ins. 
Co., 3 Ted. Cas. No. 1,261. Mich. — 
«.©tt t. Chambers, 62 Mich. 532, 29 N. 



W. 94. See Angell t;. Pickard, 61 Mich. 
561, 28 N. W. 680. N. Y. — Keyes v. 
Brush, 2 Paige 311. 

16. McCloskey v. Standard Oil Co. 
(Ky.), 26 S. W. 1101. See the title 
"Reference." 

17. U. S. — Clapp v. Nordmeyer, 25 
Fed. 71; Sandwich Mfg. Co. v. Wright, 
22 Fed. 631; Hahn v. Salmon, 20 Fed. 
801. Cal. — Miller v. Kehoe, 107 Cal. 
340, 40 Pac. 485; Francisco v. Aguirre, 
94 Cal. 180, 29 Pac. 495. Hinkley v. 
Reed, 182 111. 440, 55 N. E. 337. 111. — 
Bouton v. Dement, 123 111. 142, 14 N. 
E. 62; Ide v. Sayer, 129 111. 230, 21 N. 
E. 810. la. — Prouty v. Clark, 73 Iowa 
55, 34 N. W. 614. Ky. — Maiders V. 
Culver's Assignee, 1 Duv. 164. Mich. 
Wilhelm v. Byles, 60 Mich. 561, 27 N. 
W. 847, 29 N. W. 113; Root V. Potter, 
59 Mich. 498, 26 N. W. 682. Mo. — 
Roan v. Winn, 93 Mo. 503, 4 S. W. 736; 
Harris v. Harris, 25 Mo. App. 502. 
Neb. — Moorl.ead v. Adams, 18 Neb. 
569, 26 N. W. 242. N. J. — Lee r. Cole, 
44 N. J. Eq. 318, 15 Atl. 531. Ore. — 
Dawson v. Sims, 14 Ore. 561, 13 Pac. 
506; Jacobs Bros. & Co. v. Ervin, 9 
Ore. 58. Pa. — Vandyke v. Christ, 7 
Watts & S. 373. Tex. — Dittman v. 
Weiss, 87 Tex. 614, 30 S. W. 863; Kel- 
ler v. Smalley, 63 Tex. 512. Wash. — 
Fidelity Nat. Bank v. Adams, 38 Wash. 
75, 80 Pac. 284. Wis. — Hawks v. 
Pritzlaff, 51 Wis. 160, 7 N. W. 303; 
Estabrook v. Messersmith, 18 Wis. 545. 

See Trown v. Brabb, 67 Mich. 17, 34 
N. W. 403, 11 Am. St. Rep 549; Wake- 
man v. Barrows, 41 Mich. 363, 2 N. W. 
50; Clarkson v. McMaster & Co., 25 
Can. Sup. 96; Hyman & Co. v. Howell, 
13 Ont. 400; Doull V. Kopman, 22 Ont. 
App. 447. 

Though ft statute provides that an 
assignment shall be effective as a 

vol m 



68 ASSIGNMENT FOR THE BENEFIT OF CREDITORS 

at common law was merely the representative of the debtor and en- 
dowed with the latter 's rights. 18 An assignee cannot sue to set 
aside, as in fraud of creditors, a mortgage upon the assigned prop- 
erty. 19 But he may defend against the enforcement of a mort- 
gage on that ground. 20 Before he is entitled to proceed in equity to 
set aside an alleged fraudulent conveyance the creditor must have 
established his claim in law and exhausted his legal remedies. 21 The 
judgment entitling a creditor to sue must be a valid 22 domestic 23 
judgment. An allowance of his claim by the assignee is sufficient to 
satisfy this requirement where the statute gives to such allowance 
the force of a judgment. 24 

2. Statutes. — a. Generally. — Statutes in many states either ex- 
pressly confer upon the assignee the right to sue to set aside trans- 
fers fraudulent as to creditors 25 or are construed to do so because of 



transfer of all of the assignor's proper- 
ty to the assignee, whether mentioned 
therein or not, it does not operate to pass 
title to property previously owned and 
conveyed in fraud of creditors, nor the 
right to sue to set aside such convey- 
ance. Dittman V. Weiss, 87 Tex. 614, 
30 S.' W. 863. 

Prior att-hment suffered by assign- 
or — assignee (annot sue to set it aside. 
Howitt V. Blodgett, 61 Wis. 376, 21 N. 
W. 292. 

18. U. S. — Clapp v. Nordmeyer, 25 
Fed. 71. 111. — Hinkley v. Reed, 182 
111. 440, 55 N. E. 337; Bouton v. De- 
ment, 123 111. 142, 14 N. E. 62. Eng. 
Jones v. Yates, 9 Barn. & C. 532, 17 E. 
C. L. 436, 109 Eng. Reprint 198. 

See Hanes v. Tiffany, 25 Ohio St. 549. 

"It is a general rule of law, that a 
person cannot, by any voluntary act of 
his own, transfer to another a right 
which he does not himself possess. And 
where an insolvent debtor has made a 
fraudulent transfer of his property, or 
ha<* discharged his own debtor from 
liability for the purpose of defrauding 
his creditors, so that he cannot reclaim 
the property, or sustain a suit for the 
debt in his own name, I think be can- 
not, by ?n assignment which is wholly 
voluntary on his part, take away the 
right of his creditors generally, to set 
aside the fraudulent transfer, or to re- 
cover the debt fraudulently discharged, 
and transfer that right to his own as- 
signee, or for the benefit of preferred 
creditors; or even for the benefit of all 
his creditors equally." Brownell V. 
Curtis, 10 Paige (N. Y.) 210. 

19. Flower V. Cornish, 25 Minn. 473. 
See Chapin v. Jenkins, 50 Kan. 385, 31 

vol. in 



Pac. 1084. See also Wakeman v. Bar- 
rows, 41 Mich. 363, 2 N. W. 50. 

20. Sandwich Mfg. Co. V. Wright, 
22 Fed. 631. See also Hamilton v. 
Colt, 14 R. I. 209. But see Chapin v. 
Jenkins, 50 Kan. 385, 31 Pac. 1084. 

21. Mich.— Root v. Potter, 59 Mich. 
498, 26 N. W. 682. Mo. — Roan v. Winn, 
93 Mo. 503, 4 S. W. 736; Turner V. 
Adams, 46 Mo. 99; Luthy v. Woods, 1 
Mo. App. 167. N. Y. — Dunlevey v. 
Tallmadge, 32 N. Y. 457. Va.— Rhodes 
v. Cousins, 6 Rand. 188, 18 Am. Dec. 
715. 

See Adee v. Bigler, 81 N. Y. 349; 
Leonard v. Clinton, 26 Hun (N. Y.) 
292; Clarkson v. McMaster, 22 Ont. 
App. 138; Parkes v. St. George, 10 Ont. 
App. 496. 

See fully the tit' "Fraudulent Con- 
veyances." 

Contra, Austin v. Morris, 23 S. C. 393. 
See also U. S. — Clapp v. Dittman, 21 
Fed. 15 Dahlman v. Jacobs, 16 Fed. 
614. Pa. — In re Hogan's Estate, 181 
Pa. 500, 37 Atl. 548; In re Wenger's 
Estate, 2 Pa. Super. 611. Can. — Clark- 
son v. McMaster & Co., 25 Can. Sup. 96. 

A creditor's bill may be maintained 
in support of an attachment lien; a 
judgment lien is unnecessary. Dawson 
l?. Sims, 11 Ore. 561, 13 Pac. 506. 

22. A judgment void for want of 
jurisdiction is insufficient Millar V. 
Babcock, 29 Mich. 526. 

23. Crim v. Walker, 79 Mo. 335. 

24. Roan v. Winn, 93 Mo. 503, 4 
S. W. 736. Compare Terhune v. Sib- 
bald, 55 N. J. Eq. 236, 37 Atl. 454. 

25. Colo. — Bailey V. American Nat. 
Bank, 12 Colo. App. 66, 54 Pac. 912. 
Me. — Simpson V. Warren, 55 Me. 18. 
Mich. — Burnham v. Dillon, 100 Mich. 
352, 59 N. W. 176; Brown V. Brabb, 67 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 69 

their manifest purpose to make the assignee a trustee for the benefit 
of all the assignor's creditors and to distribute all of the debtor's 
property equitably among them. 2a The right of the assignee to sue 
is exclusive and suspends the former right of the creditors in this 
respect. 27 The fact that the assignee has executed the trust and 
been discharged does not give to a creditor the right to sue to set 
aside a conveyance subsequently discovered to be fraudulent.- 8 But 



Mich. 17, 34 JN. W. 403, 11 Am. St. Rep. 
549. Minn. — Thomas Mfg. Co. v. Drew, 
fill Minn. 69, 71 N. W. 921; Merrill r. 
Ressler, 37 Minn. 84, 33 N. W. 117. Wis. 
Crocker V. Huntzicker, 113 Wis. 181, 
88 N. W. 232; Valley Lumb. Co. V. 
Hogan, 85 Wis. 366, 55 N. W. 415; Bat- 
ten v. Smith, 62 Wis. 92, 22 N. W. 342. 

See: Ky. — Hall's Assignee v. Koth- 
ehild, 19 Ky. L. Rep. 1621, 44 S. W. 
108. Mass. — Freeland V. Freeland, 102 
Mass. 475. Miss. — Allen & Co. v. Mont- 
gomery, 48 Miss. 101. 

Conveyances in Contemplation of As- 
signment. — A statutory provision en- 
titling the assignee to sue to recover 
property fraudulently conveyed "in 
contemplation of" the assignment does 
not cover all fraudulent conveyances 
previously made by the assignor, but 
applies only to those made in contem- 
plation of the assignment. Dittman v. 
Weiss, 87 Tex. 614, 30 S. W. 863. "An 
act may be said to be done 'in contem- 
plation of the assignment;' U. done at 
the time the debtor is insolvent, and 
intends or purposes to make an assign- 
ment, or has under consideration wheth- 
er he shall make an assignment know- 
ing that he is insolvent." Keller v. 
Smalley, 63 Tex. 512, 522. 

26. Ind. — Voorhees v. Carpenter, 
127 Ind. 300, 26 N. E. 838. la. — 
Mehlop V. Ellsworth, 95 Iowa 657, 64 N. 
W. 638; Schaller v. Wright, 70 Iowa 
667, 28 N. W. 460. Kan. — Walton v. 
Eby, 53 Kan. 257, 36 Pac. 332; Chapin 
v. Jenkins, 50 Kan. 385, 31 Pac. 1084. 
Md. — Waters 17. Dashiell, 1 Md. 455. 
Mich. — Kinter V. Pickard, 67 Mich. 
125, 34 N. W. 535; Sweetzer v. Higby, 
63 Mich. 13, 29 N. W. 506; Scott v. 
Chambers, 62 Mich. 532, 29 N. W. 94; 
Angell v. Pickard, 61 Mich. 561, 28 N. 
W. 680; Root r. Potter, 59 Mich. 498, 26 
N W. 682. N. J. — Grant t;. Crowell, 
42 N. J. Eq. 524, I Atl. 201; Pillsbiy 
r. Kingon, 33 N. J. Eq. 2S7, 36 Am. 
Rep. 556 (reviewing ruthorities) ; Gar- 
retson v. Brown, 26 N. J. L. 425. 
N, Y. — McNancy v. Hall, 159 N. 



Y. 544, 54 N. E. 1093; Loos V. Wilkin- 
son, 110 N. Y. 195, 18 N. E. 99, 1 L. 
R. A. 250; Spring v. Short, 90 N. Y. 538. 
Ohio. — Kilbourne v. Pay, 29 Ohio St. 
264, 278, 23 Am. Rep. 741; Hanes V. 
Tiffany, 25 Ohio St. 549; Cornell r. 
Suiter, 23 Ohio C. C. 384; Wachtel V. 
Campbell, 21 Ohio C. C. 731. Wash. — 
Mansfield v. First Nat. Bank, 5 Wash. 
665, 32 Pac. 789, 999. 

See the following cases: 111. — Tay- 
lor v. Seiter, 199 111. 555, 65 N. E. 433; 
Preston v. Spaulding, 120 111., 208, 10 
N. E. 903. Neb. — Brown v. Farmers ' 
etc. Bkg. Co., 36 Neb. 434, 54 N. W. 
671. N. Y. — Wile v. Cauffman, 39 App. 
Div. 206, 57 N. Y. Supp. 240. Pa. — 
Tarns V. Bullitt, 35 Pa. 308; Klapp V. 
Shirk, 13 Pa. 489. Can. — Brown v. 
Grove, 18 Ont. 311; Campbell v. lially, 
22 Ont. App. 217. 

But see Prouty V. Clark, 73 Iowa 55, 
34 N. W. 614; Van Patten V. Burr, 52 
Iowa 518, 3- N. W. 524. 

A general assignment by a corpora- 
tion vests in the assignee the exclusive 
right to sue to set aside fraudulent 
transfers. Creteau v. Foote & Thorne 
Glass Co., 54 App. Div. 168, 66 N. \. 
Supp. 370. 

Distinction between statutes which 
merely regulate the common law assign- 
ment and those which are in effect in- 
solvency acts designed to equitably dis- 
tribute an insolvent debtor's est at- 
Mansfield v. First Nat. Bank, 5 Wash. 
665, 32 Pac. 789, 999. See also Pills- 
bury V. Kingon, 33 N. J. Eq. 287, 36 
Am. Rep. 556. 

Fraudulent Mortgage. — Chapin v. 
Jenkins, 50 Kan. 385, 31 Pac. 1084; 
Sweetzer v. Higby, 63 Mich. 13, 29 N. 
\V. r)06. 

27. — Valley Lumb. Co. V. Hogan, 8o 
Wis. 366, 5.". X. W. 415. Compare Min- 
nesota Thresher Mfg. Co. V. Langdon, 
44 Minn. 37, 46 N. W. 310. 

28. Voorhees v. Carpenter, 127 Ind. 
300, 26 N. E. 9«8. But see Fidelity 
Nat. Bank v. Adams, 38 Wash. 7 

Vol. ILL 



70 ASSIGNMENT FOB THE BENEFIT OF CREDITORS 

where the assignment is void or voidable a creditor may sue to set 
it aside and thereby restore to himself the right to attack a fraudu- 
lent conveyance by the assignor. 29 

b Dereliction of Assignee. — The neglect or refusal of the as- 
signee 80 or his participation in the fraud, 31 entitles creditors, 82 upon 
a proper showing of such facts, to attack an alleged fraudulent con- 

V % & Parties and Pleadings. — The assignee should be made a party 
defendant in such a suit ; 33 so also, under some statutes, should the 
assignor. 3 * 



Pae. 284. Compare Loucheim v. Cas- 
person, 61 N. J. Eq. 529, 48 Atl. 1107. 

29. Loos v. Wilkinson, 110 N. Y. 
195, 18 N. E. 99, 1. L. E. A. 250. 

30. HI. — Preston v. Spalding, 120 
111. 208, 10 N. E. 903. Ind. — Wright v. 
Mack, 95 Ind. 332. Ky. — Hall 's Assig- 
nee v. Eothschild, 102 Ky. 582, 44 S. W. 
108. Mich. — Burnham v. Dillon, 100 
Mich. 352, 59 N. W. 176; Funke v. Cone, 
65 Mich. 581, 32 N. W. 826; Sweetzer V. 
Higby, 63 Mich. 13, 29 N. W. 506. 
N. J. — Kalmus v. Ballin, 52 N. J. Eq. 
290, 28 Atl. 791, 46 Am. St. Eep. 520; 
White v. Davis, 48 N. J. Eq. 22, 21 
Atl. 187; Lee v. Cole, 44 N. J. Eq. 
318, 15 Atl. 531. N. Y. — Maass v. 
Falk, 146 N. Y. 34, 40 N. E. 504; Kes- 

' sell v. Drucker, 23 Abb. N. C. 1, 6 N. 
Y. Supp. 945; Swift v. Hart, 35 Hun 
128. Ohio. — Saxton v. Seiberling, 48 
Ohio St 554, 29 N. E. 179; Cornell V. 
Suiter, 33 Ohio C. C. 384. Wis.— 
Valley Lumb. Co. V. Hogan, 85 Wis. 
366, 55 N. W. 415. Can. — Campbell v. 
Hally, 22 Ont. App. 217. 

Contra, John Deere Plow Co. v. Em- 
poria Nat. Bank, 59 Kan. 38., 51 Pac. 
892, holding that upon the assignee's 
refusal a creditor's only remedy is 
to apply to the court for an order 
compelling tho assignee to act. See 
also West v. Gribben, 23 Ky. L. Eep. 
311, 62 S. W. 869. 

If the assignee has not qualified 
es such, his refusal to sue does not 
justify a suit by a creditor. Mills v. 
Goodenough, 18 N. Y. Civ. Proc. 151, 
9 N. Y. Supp. 764. 

Death of Assignee. — Loucheim v. 
Casperson, 61 N. J. Eq. 529, 48 Atl. 
1107. 

31. Ind.— Doherty v. Holiday, 137 
Ind. 282, 32 N. E. 315; Wright V. Mack, 
95 Ind. 332. Mich. — Burnham V. Haskins, 
72 Mich. 235, 40 N. W. 327. N. J.— 
Terhune v. Sibbald, 55 N. J. Eq. 236, 
37 Atl. 454. See Loucheim v. Cas- 
person, 61 N. J. Eq. 529, 48 Atl. 1107. 

vol. in 



N. Y. — Markell v. Hill, 34 Misc. 133, 
69 N. Y. Supp. 537; Kendall v. Mel- 
len, 13 N. Y. Supp. 207. 

Interest of assignee in alleged prior 
fraudulent mortgage. See Sweetzer v. 
Higby, 63 Mich. 13, 29 N. W. 506. 

32. Simple Contract Creditors May 
Sue. — A judgment is unnecessary. 
Spelman v. Freedman, 130 N. Y. 421, 
29 N. E. 765. See Brockett & Sons v. 
Lewis, 144 Mich. 560, 108 N. W. 429. 

A creditor who has presented his 
claim has sufficient standing to sue. 
Kalmus v. Ballin, 52 N. J. Eq. 290, 
28 Atl. 791, 46 Am. St. Eep. 520. See 
Hamlin's Admr. v. Bennett, 52 N. J. 
Eq. 70, 27 Atl. 651. So has a judg- 
ment creditor though he has not pre- 
sented his claim (White v. Davis, 48 
N. J. Eq. 22, 21 Atl. 187); or though his 
judgment was rendered after the as- 
signment. Lee v. Cole, 44 N. J. Eq. 
318, 15 Atl. 531. 

The creditors collectively or one 
alone in behalf of the others may 'n- 
stitnte the suit. Crouse v. Frothing- 
ham, 97 N. Y. 105, 113. Compare Mer- 
win v. Eichardson, 52 Conn. 224. 

All creditors may join in the suit, 
since they have a unity of interest. 
Wright v. Mack, 95 Ind. 332. 

The proceeds of the suit, though 
prosecuted by one creditor, become the 
assets of the insolvent estate to be 
distributed to all creditors. Ky. — 
Eoberts V. Phillips, 11 Bush 11. N. J. 
Hamlin's Admr. V. Bennett, 52 N. J. 
Eq. 70, 27 Atl. 651. N. Y. — Crouse v. 
Frothingham, 97 N. Y. 105. Can. — 
Doull v. Kopman, 22 Ont. App. 447. 

See In re Wilson, 138 Iowa 225, 114 
N". W. 551. Contra, Greffet v. Goress- 
ling, 81 Mo. App. 633^ 

33. Burnham V. Dillon, 100 Mich. 
352, 59 N. W. 176; Hamlin's Admr. V. 
Bennett, 52 N. J. Eq. 70, 27 Atl. 651. 
See Swift V. Hart, 35 Hun (N. Y.) 
128; Saxton v. Leib^ling, 48 Ohio St. 
554, 29 N. E. 179. 

34. Loving t>. Arnold, 84 Fed. 214. 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 71 

Demand. — The making of a demand or request that the assignee 
bring suit should be averred, 36 unless the pleadings show that 6uch 
a request would have been useless. 36 

A prior tender to the alleged fraudulent vendee need not be 
averred. 37 

Belief. — The bill may ask as alternative relief that the convey- 
ance, if held valid, be enforced as a general assignment for the bene- 
fit of all creditors. 88 

Objection to the creditor's right to sue is waived if not questioned 
by demurrer before answering to the merits. 39 Such objection can- 
not be made by the debtor. 40 

Permission of Court. — The failure to apply to the court for permis- 
sion to sue, as required by statute, 41 cannot be questioned for the 
first time on appeal. 42 

3. Limitations. — The suit to set aside a prior conveyance as fraud- 
ulent must be commenced within the statutory period 43 after the 
discovery of the fraud, 44 or other act 45 setting the statute in mo- 
tion. 



35. Hall's Assignee v. Eothchild, 
102 Ky. 582, 44 S. W. 108. See Sweet- 
zer v. Higby, 63 Mich. 13, 29 N. W. 
506. 

The absence of such an averment 
is waived if not objected to by de- 
murrer. Wisdom v. Eussell, 21 Ky. L. 
Rep. 881, 53 S. W. 284. 

Nature and Form of Request. — See 
Kalmus v. Ballin, 52 N. J. Eq. 290, 28 
Atl. 791, 46 Am. St. Rep. 520. 

36. An averment of a request that 
the assignee bring the suit need not be 
made where his participation in the 
fraud is alleged. Terhune v. Sibbald, 
55 N. J. Eq. 236, 37 Atl. 454; Ken- 
dall v. Mellen, 59 Hun 623, 13 N. Y. 
Supp. 207. See Fort Stanwix Bank v. 
Leggett, 51 N. Y. 552. 

37. It is sufficient to offer, in the 
petition or complaint, "to pay into 
court such sum l> . the court may find 
the defendant entitled to as a condi- 
tion of setting the sale and convey- 
ance aside." Saxton v. Leiberling, 
48 Ohio St. 554, 29 N. E. 179. 

38. See supra, II, D, 3, a. 

39. Wisdom v. Russell, 21 Ky. L. 
Rep. 881, 53 S. W. 284 (where both 
the assignee, who was a party de- 
fendant, and the fraudulent grantee 
failed to demur on this ground). See 
Barnham v. Dillon, 100 Mich. 352, 59 
N. W. 176. 

A special demurrer must be inter- 
posed on this ground. Saxton v. Sei- 
berling, 48 Ohio St. 554, 29 N. E. 179, 



distinguishing incapacity to sue from 
lack of cause or right of action. 

40. Fidelity Nat. Bank v. Adams, 
38 Wash. 75, 80 Pac. 284. 

41. Necessity of Order of Court. — 
See Sweetzer v. Higby, 63 Mich. 13, 29 
N. W. 506; Doull v. Kopman, 22 Ont. 
App. 447; Campbell v. Hally, 22 Ont. 
App. 217. 

42. Funke v. Cone, 65 Mich. 581, 
32 N. W. 826. 

43. Ky. — Montgomery t;. Allen, 107 
Ky. 298, 53 S. W. 813. N. J.— Smith's 
Admr. v. Wood, 42 N. J. Eq. 563, 7 
Atl. 881, suit in equity is governed by 
the analogy of the statute governing 
similar actions at law. N. M. — Early 
Times Distil. Co. v. Zeiger, 11 N. M. 
221, 67 Pac. 734. 

See Ky. — Zeman v. Steinberg, 21 Ky. 
L. Rep. 1152, 54 S. W. 178; Butler 
V. Monks, 4 Ky. L. Rep. 996; White- 
head v. Woodruff, 11 Bush 209. N. J. 
Red Bank Second Nat. Bank v. Farr, 
(N. J. Eq.) 7 Atl. 892. Ohio.— Maas 
v. Miller, 58 Ohio St. 483, 51 N. E. 
158. 

44. Fidelity Nat. Bank v. Adams, 
38 Wash. 75, 80 Pac. 284. But see 
Voorhees v. Carpenter, 127 Ind. 300, 
26 N. E. 833. 

45. Downer v. Porter, 116 Ky. 422, 
76 S. W. 135 (delivery of property); 
Julius Locheim & Co. v. Eversole, 29 
Ky. L. Rep. 464, 93 S. W. 52 (filing 
for record). See Howard v. Maloney, 
15 Ky. L. Rep. 654. 



VoL III 



72 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 

III ACTIONS AND PROCEEDINGS BY AND AGAINST AS- 
SIGNEE.— A. By Assignee. — 1. Generally. — In the absence ot 
statute the assignee acquires by the assignment only those rights oi 
action which could have been exercised by the assignor but tor the 
assignment. 46 In addition to these rights of action the assignee may 
invoke those remedies which accrue to him by virtue of his owner- 
shio and trust capacity. 47 Upon the removal or death of an assignee 
the' rights of action which he possessed vest in his successor as as- 
signee, 48 and not in his executor or administrator. 49 

Statutes, however, frequently vest in the assignee all rights of 
action which would otherwise be available to creditors. 50 But even 
under such statutes the neglect or refusal of the assignee to sue 
justifies action by the creditors. 51 



46. U. S — Stewart v. Piatt, 101 TJ. 
S. 731, 25 L. ed. 816; Hahn V. Salmon, 
20 Fed. 801. Conn.— Central Bank V. 
Curtis, 26 Conn. 533. Ga. — Fouche V. 
Brower, 74 Ga. 251. Mich. — Wake- 
man v. Barrows, 41 Mich. 363, 2 N. 
W. 50. Minn. — T'lower v. Cornish, 25 
Minn 473. N. J. — Anderson v. Tuttle, 
26 -N J. Eq. 144. N. Y. — Minier v. 
Elmira Sec. Nat. Bank, 13 N. Y. St. 
222: Brownell v. Curtis, 10 Paige 210. 
Wis.— Hawks V. Pritzlaff, 51 Wis. 160, 
7 N. W. 303; Estabrook v. Messer- 
smith, 18 Wis. 545. 

The members of a partnership can- 
not be sued by the assignee of the 
firm for alleged conspiracy to defraud 
the partnership and its creditors, since 
this in effect would be an action by 
the partners against themselves, even 
though the statute gives the assignee 
authority to prosecute such actions 
for property and make such de- 
fense to claims against the assigned 
property as a trustee in a deed of 
trust or an attaching or execution 
creditor with a writ levied upon such 
property could prosecute or make. 
Haseltine V. Messmore, 18': Mo. 298, 82 
S W 115. Compare Lund v. Skanes 
Enskilda Bank, 96 111. 183. 

Rights of action personal to the as- 
signor and which do not pass by as- 
signi-ent cannot be exercised by the 
assignee. Slausou V. Schwabacher, 4 
Wash. 783, 31 Pac. 329, 31 Am. St, 
3ep. 948. 

The assignor cannot sue upon any 
claims or rights of action covered by 
the assigrment. r 'mith V. Chicago & 
N. W. R. Co., 23 Wis. 267. 

47. N. Y. — Whittaker V. Merrill, 30 

vol. in 



Barb. 389. Pa. — Wilmarth v. Mount- 
ford, 8 Serg. & R. 124. Tex.— Roby 
v. Meyer, 84 Tex. 386, 19 S. W. 557, 
action for wrongful attachment. 

See also the sections following here- 
in. 

He may invoke the aid of equity 
in the enforcement of the trust. Louis- 
ville Mfg. Co. v. Brown, 101 Ala. 
273, 13 So. 15. See also Dimmock V. 
Bixby, 20 Pick. (Mass.) 368. He may 
maintain a bill of discovery against 
the assignor who has failed to fur- 
nish the required inventory. Keyes v. 
Brush, 2 Paige [TX. Y.) 311. 

A suit for partition can be main- 
tained by the assignee only when 
necessary to the proper execution of 
his trust. Wheeler V. Hawkins, 101 
Ind. 486. 

The assignee of a corporation may 
bring an action for an unpaid sub- 
scription on stock. Shockley v. Fisher, 
75 Mo. 498; Lionberger v. Broadway 
Sav. Bank, 10 Mo. App. 499. 

48. Mitchell v. Stoddard Co. Bank, 
23 Ky. L. Eep. 1562, 65 S. V. 839; 
Perry v. Stephens, 77 Tex. 246, 13 S. 
W. 984. 

49. An executrix, as such, has no 
right to be substituted in place of a 
deceased assignee, Steinhouser v. 
•Mason, 135 >_ . Y. 635, 32 N. E. 69. 

50. See supra, II, E, 2, and Far- 
rcll Foundry, etc. Co. v. Preston 
Nat. Bank, *93 Mich. 582, 53 N. W. 
831; Sweetzer V. Higby, 63 Mich. 13, 
29 N W. 506; Valley Lumb. Co. v. 
Hogan, 85 Wis. 366, 55 N. W. 415. 

51. See Sweetzer v. Higby, 63 
Mich. 13, 29 N. W. 506, and supra, 
II, E, 2, b. 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 73 



A foreign assignee may sue in the domestic state, if by so doing he 
does not infringe the rights of local creditors, 52 without the neces- 
sity of executing a bond at the forum. 53 And an assignee appointed 
in one state may sue in the federal courts of the same or other 
states. 54 But a non-resident assignee may be required to furnish 
security for costs. 55 

2. Against Unlawful Attachment or Levy. — The prosecution of a 
levy may be enjoined, 56 and a suit may be maintained by the assignee 
to dissolve or avoid it. 57 The assignee may also seek relief in ac- 
cordance with the method provided for the relief of third persona 
whose property has been wrongfully attached, 58 or he may replevy 
the property taken by the attachment or levy, 69 or sue for its con- 
■\ersion, 60 or wrongful attachment. 01 



52. Ala. — M Donald's Adm. v. 
Carey, 38 Ala. 320. Conn. — Upton v. 
Hubbard, 28 Conn. 274, 73 Am. Dec. 
670. Mich. — Graydon V. Church, 7 
Mich. 36. N. Y. — Hoyt v. Thompson, 

5 N. Y. 320. Pa. — Milne V. Moreton, 

6 Binn. 353, 6 Am. Dec. 466. Tex.— 
Miller v. Goodman, 15 Tex. Civ. App. 
244, 40 S. W. 743. Wash. — Happy r. 
Prickett, 24 Wash. 290, 64 Pac. 528. 

See the following cases: D. C. — 
Matthai V. Conway, 2 App. Cas. 45, 
Kan. — Kogers v. Coates, 38 Kan. 232, 
16 Pac. 463. N. Y. — Abraham V. Ples- 
toro, 3 Wend. 538, 20 Am. Dec. 738. 

53. Peach Orchard Coal Co. v. 
Woodward, 20 Ky. L. Eep. 1613, 49 
S. W. 793. 

54. Greaves v. Neal, 57 Fed. 816; 
Cover v. Claflin, 57 Fed. 513. But 
see Sere v. Pitot, 6 Cranch (U. S.) 332, 
3 L. ed. 240. 

55. Eanncy v. Stringer, 4 Bosw. 
(N. Y.) 663. 

56. Thorington V. Gould, 59 Ala. 
461; Howard v. Cannon, 11 Eich. Eq. 
23, 75 Am. Dec. 736. See also Haynes 
v. Eizer, 14 Lea (Tenn.) 246; Ford v. 
Watts, 95 Va. 192, 28 S. E. 179. Com- 
pare Ashton v. Jones, 14 Neb. 426, 16 
N. W. 434. 

57. Emerson v. Detroit Steel & 
Spring Co., 100 Mich. 127, 58 N. W. 
659; Gott v. Hoschna, 57 Mich. 413, 
24 N. W. 123; Smith v. Jones, 18 Neb. 
481, 25 N. W. 624. 

58. See Quebec Bank r. Carroll, 1 
S. D. 372, 47 N. W. 397, and the titles 
"Attachment," "Garnishment." 

A garnishment may be dissolved on 
motion and without a disclosure by 
the assignee. Lord v. Meachem, 32 
Minn. 66, 19 N. W. 346. See also 
Cox Mfg. Co. v. August, 51 Kan. 59, 



32 Pac. 636; Wichita Wholesale Groc. 
Co. r. Eecords, 40 Kan. 119, 19 Pac. 
346; In re Van Norman, 41 Minn. 
494, 43 N. W. 334, and the title 
"Garnishment." 

The assignee cannot by a mere mo- 
tion, in an action to which he is ot 
a party, have an attachment of the as- 
signed property dissolved. Copeland 
v. Piedmont 3 A. L. Ins. Co., 17 S. 
C. 116; Metts v. Piedmont & A. L. 
I_s. Co., 17 S. C. 120. See also Bowo 
v. Kellogg, 54 Mich. 206, 19 N. W. 
957. Compare Quebec Bank V. Carroll, 
1 S. D. 372, 381, 47 N. W. 397. 

The assignee ( annot without leave 
of court, traverse the attachment affi- 
davit in a 3uit against his assignor 
where the assignment was made aft- 
er the attachment. Howitt v. Blodgett, 
61 Wis. 376, 21 N. W. 292. 

Interpleader. — See Sanger v. Flow, 
48 Fed. 152, 1 C. C. A. 56; Farwell P. 
Jerkins, 18 111. App. 493. 

Intervention. — See infra, III, C. 

59. Mmmo V. Kuykendall, 85 111. 
476. See Edwards r. Sumner, 4 Cush. 
(Mass.) 393; and infra, III, A, 3. 

60. Anderson v. Eisdon-Cahn Co., 13 
Wash. 494, 43 Pac. 337. See Whee- 
lock v. Hastings, 4 Met. (Mass.) 504; 
and infra, III, A, 3. 

61. Eoby v. Meyer, 84 Tex. 386, 19 
S. W. 557. 

In an action ags-'nst a credito for 
damages for unlawfully attaching the 
assigned property, plaintiff need not 
negative the fact that defendant is 
the only creditor entitled to receive 
the money -which might be recovered, 
this being defensive matter to be 
pleaded by defendant. Nave v. Brit- 
ton, 61 Tex. 572. 

vol m 



74 ASSIGNMENT FOR THE BENEFIT OF CREDITORS 

3. Trover and Replevin. — The assignee under a valid assignment 62 
many enforce his title to and right to possession of the assigned 
personalty by action of trover and replevin or their statutory 
equivalent. 63 But since the assignee does not take title to property 
previously transferred in fraud of creditors, he cannot maintain re- 
plevin or an action for the conversion thereof, but may proceed only 
in equity to set aside the transfer in so far as may be necessary to 
the execution of his trust. 6 * 

4. Action for -Usury. — "Whether an assignee may sue or become 
a party to an action for usury depends upon the form of the statute 
and whether it restricts the right of action to the injured party, 65 
or contemplates an action by his representatives. 66 

5. Prerequisites to Suit. — It is not ordinarily necessary for an 
assignee to obtain leave of court to file a suit, 67 though such leave 
may be necessary to enable him to become a party to a pending 
action. 68 What steps, if any, must be taken to perfect the assign- 
ment before an action can be maintained by the assignee, depends 
upon the statute. 69 



62. But not where the assignment 
is void. Mosconi v. Burchinell, 7 
Colo.' App. 435, 43 Pac. 912. 

63. Ark. — Clayton v. Johnson, 36 
Ark. 406, 38 Am. Eep. 40. 111. — Nim- 
mo v. Kuykendall, 85 111. 476. la. — 
Price v. Parker, 11 Iowa 144. Mich. — 
Coots v. Eadford, 47 Mich. 37, 10 N. 
W. 69. N. J. — Garretson V. Brown, 26 
N. J. L. 425, 27 N. J. L. 644. N. Y.— 
Emerson v. Bleakley, 5 Abb. Pr. (N. 
S.) 350. 

See HI. — Boyden v. Frank, 20 111. 
App. 169. Neb. — Wells v. Lamb, 18 
Neb. 352, 24 N. W. 682. N. Y. — Whit- 
taker v. Merrill, 30 Barb. 389. Ohio. 
Bancroft V. Blizzard, 13 Ohio. 30. 

Eight of Possession. — Where a chat- 
tel though covered by the assignment 
had been previously mortgaged, and 
while in the mortgagee's lawful pos- 
session attached, the right of posses- 
sion not being in the assignee, it was 
held he could not maintain trover. 
Axford v. Mathews, 43 Mich. 427, 5 
N. W. 377. 

The death of an assignee suing for 
a tortious conversion of the assigned 
property does not- abate the action. 
Emerson v. Bleakley, 5 Abb. Pr. N. 
S. (N. Y.) 350. 

64. Frost v. Citize-is ' Nat. Bank, 68 
Wis. 234, 32 N. W. 110; Baumbach Co. 
V. Miller, 67 Wis. 449, 30 N. W. 850; 
Kloeckner v. Berg3trom, 67 Wis. 197, 
30 N. W. 118. 

vol. in 



65. The assignee cannot properly be 
made a party to an action by the 
assignor for usury, nor substituted as 
plaintiff for the latter, where the 
statute restricts the right of action 
to the borrower himself. Eichards V. 
Ludington, 60 Hun 135, 14 N. Y. Supp. 
510. 

66. Where the statute provides 
that double the amount of usurious 
interest may be recovered by the per- 
son for whom it has been paid or by 
his legal representatives, an assignee 
for the benefit of creditors is the rep- 
resentative of his assignor. Henderson 
Nat. Bank v. Alves, 91 Ky. 142, 15 S. 
W. 132. 

67. Glenn v. Busey, McArthur & 
M. (D. C.) 454. See Eochford v. Doty, 
37 Wash. 232, 79 Pac. 782. But see 
Jewett v. Perrette, 127 Ind. 97, 26 
N. E. 685. 

68. See infra, III, C. But see 
Piatt v. McMurray, 63 How. Pr. (N. 
Y.) 149. 

69. Ark. — Falconer v. Hunt, 39 
Ark. 68 (filing schedule and bond) ; 
Thatcher v. Franklin, 37 Ark. 64. Ind. 
Forkner V. Shafer, 56 Ind. 120, record- 
ing assignment. Ta. — Price v. Parker, 

II Iowa 144, filing bond and inventory. 
7" ill. — McCuaig v. City Sav. Bank, 

III Mich. 356, 69 3T W. 500, necessity 
of filing bond. 



ASSIGNMENT FOB THE BENEFIT OF CREDITORS 75 

No demand is necessary to the maintenance of a suit against the 
assignor's transferee for the recovery of property fraudulently trans- 
ferred, 70 or the value thereof, 71 nor is a demand 72 or notice of the 
assignment 73 an essential prerequisite to an action to recover the 
assigned property. 

6. Parties. — The assignee may sue in his own name upon rights ot 
action acquired from the assignor, 74 as well as upon those subse- 
quently accruing by virtue of his ownership or right of possession.'- 
But a foreign assignee may be compelled to sue in the name of his 
assignor where the obligation or claim is one which under the law 
of the forum cannot be assigned at all, 76 or only by a specific assign- 
ment 77 The beneficiaries of the trust, the creditors 78 and the assignor, 



70. Bull v. Houghton, 65 Cal. 422, 
4 Pae. 529. 

71. Crampton V. Valido Marble Co., 
60 Vt. 291, 15 Atl. 153, 1 L. R. A. 
120. 

72. Frazier V. Fredericks, 24 N. J. 
L. 162 (property attached before the 
time for taking possession thereof by 
the assignee has expired) ; Bancroft 
v. Blizzard, 13 Ohio 30. 

73. Beckwith V. Union Bank, 9 N. 
Y. 211: Stewart v. National Sec. Bank, 
6 J. N. C. (Pa.) 399. 

74. Conn. — Stanton v. Lewis, 26 
Conn. 44. Fla. — Robinson V. Nix, 22 
Fla 321. Ill — Congress Const. Co. v 
I arson & Libby Co., 199 111. 398, 65 
N. E. 357. Ky. — Tandy V. Hatcher, 6 
Ky. L. Rep. 745. Mo. — Glenn v. Hunt, 
120 Mo. 330, 25 S. W. 181. N. Y. — 
Lewis v. Graham, 4 Abb. Pr. 106. 
N. C. — Hartness v. Wallace, 106 N. C. 
427, 11 S. E. 259. Ohio. — Rossman v. 
McFarland, 9 Ohio St. 369. S. C — 
Salas V. Cay, 12 Rich. 558; Ferrall v. 
Paine, 2 Strobh. 293. 

But see Buckner v. Real Estate 
Bank, 5 Ark. 536, 41 Am. Dec. 105; 
Osborn V. First Nat. Bank, 175 Pa. 
494, 34 Atl. 858. 

"The assignee, under a general as- 
signment for the benefit of creditors, 
is an assignee of an express trust; 
has the entire legal title, and may sue 
in his own name without referring 
to his character as assignee. He makes 
title under the assignment as in any 
other case of sale and transfer. Even 
executors and administrators are gen- 
erally allowed to sue in their indi- 
vidual names, without declaring in 
their representative character. . . . 
In such cases they are generally 
charged, of course, with costs in case 



they fail in the suit." Butterfield v. 
Macomber, 22 How. Pr. (N. Y.) 150 
An action for breach of a contract of 
sale made by defendant and plaint- 
iff's assignor is not within the code 
provisions requiring actions for breach 
of a contract for the payment of 
money to be brought in the name 
of the real party in interest and au- 
thorizing suit by an indorsee, and 
such an action cannot therefore be 
brought by the assignee in his own 
name. Snead v. Pell, 142 Ala. 449, 
38 So. 259. 

75. Ariz. -Cullum v. Paul, 8 Pac. 
187 Minn. — Langdon v. Thompson, 
25 Minn. 509. B. I. — Meyers V. 
Briggs, 11 R. I. 180. 

See also Wilmarth V. Mountford, 8 
Serg. & R. (Pa.) 124. 

76. Kirkland v. Lowe, 33 Miss. 
423, 69 Am. Dec. 355. 

77. Conn. — Brush v. Curtis, 4 Conn. 
312. Miss. — Orr v. Amory, 11 Mass. 
25; Dawes v. Boyleston, 9 Mass. 337, 
6 Am. Dec. 72. N. Y. — Bird v. Car- 
itat, 2 Johns. 342, 3 Am. Dec. 433. 

78. U. S. — Kerrison f. Stewart, 93 
U. S. 155, 23 L. ed. 843. Ala. — Louis- 
ville Mfg. Co. v. Brown, 101 Ala. 
273, 13 So. 15; Walker v. Miller. 11 
Ala. 1067. Fla. — Robinson v. Nix, 22 
Fla. S21. Ky. — Robinson v. Robinson, 
11 Bush 174. Me. — Jackson v. Can- 
dage, 31 Me. 28. Minn. — Langdon v. 
Thompson, 25 Minn. 409. N. Y. — 
Lewis V. Graham, 4 Abb. Pr. 106. Pa. 
Irwin v. Keen, 3 Whaft. 347. S. C. — 
Salas v. Cay, 12 Rich. "558. Tex.— 
Simmons Hdw. Co. v. Kaufman, 77 
Tex. 131, 8 S. W. 283. Va. — Buck v. 
Pennybacker's Exrs., 4 Leigh 5. 

79. Tandy v. Hatcher, 6 Ky. L. 
Rep. 745. 

vol. m 



76 ASSIGNMENT FOR THE BENEFIT OF CREDITORS 

need not be made parties to a suit by the assignee. They may, 
however, be proper parties to such proceedings, 80 and may intervene 
therein for the protection of their interests. 81 The assignee s sureties 
may under some circumstances become parties to a suit by the 
assignee 82 Where only a portion of those persons who have been 
nominated as assignees of a debtor accept the trust they may sue 
without joining the others. 83 

7 Complaint. — The assignment must be averred in an action upon 
a claim passing to the assignee by virtue thereof, 8 * but not m an 
action upon a cause of action accruing to the assignee by virtue ot 
his ownership or right of possession.** A foreign ^assignee » need not 
allege that the assignment is in accordance with the law of the state 

where made. 8 * 5 , ,. . , 

8 Set-off and Counterclaim. — In an action by the assignee to en- 
force a debt or claim acquired by the assignment the defendant may 
plead the same set-offs or counterclaims which he could ^aye used 
against the assignor. 87 But unless the counterclaim be one which had 

80. Where it appears that the as- 
signor, a partnership, is solvent and 
that there will therefore be a sur- 
plus for the partners, they are proper 
parties to a suit by the assignee to 
enforce the trust. McCampbell V. 
Brown, 48 Fed. 795. 

81. Louisville Mfg. Co. V. Brown, 
101 Ala. 273, 13 So. 15. 

82 Sureties ~iay become partis 
to a suit by the assignee to recover 
money unlawfully paid by him out 
of the trust funds under an agree- 
ment that it should be repaid if this 
action was not approved, where they 
have already reimbursed the estate. 
Wheeler v. Hawkins, 116 Ind. 515, 19 
N. E. 470. 

83. Shockley V. Fisher, 75 Mo. 
498- Van Valktnburgh v. Elmendort, 
13 Johns. (N. Y.) 314. 

84. Powell v. Williams, 99 Mich. 
30 57 N W. 1041. See also Bell v. 
Mansfield, 1 " Ky. L. Kep. 89, 13 W. 
838 

An averment that plaintiff is the 
duly qualified and acting assignee 
of 'an incorporated bank of another 
state is sufficient, :f not denied, to 
show his compliance with the law both 
of the foreign state- and of the forum. 
Sogers v. Coates, 38 Kan. 232, 16 Pac. 
463 

85. Cullum V. Paul (Ariz.), 8 Pre. 
187; Wilmarth v. Mountford, 8 Serg. 
& R. (Pa.) 124 (where one _ is de- 
scribed as assignee in an action for 
the price of goods sold by him, this 
may be disregarded as surplusage). 

vol. in 



See also Hoogland v. Trask, 6 Robt. 
(N. Y.) 540, action on promissory 
note acquired by assignment. And 
see Wilhoit v. Cunningham, 87 Cal. 
453, 25 Pae. 675. 

Title may be averred generally and 
the assignment may be introduced in 
evidence to prove it. State v. Krug, 
82 Ind. 58; Krug v. McGilliard, 76 
Ind. 28; Langdon V. Thompson, 25 
Minn. 509. But see Wheeler v. Haw- 
kins, 101 Ind. 486. 

Where unnecessarily averred the as- 
signment must appear to be a valid 
one. State v. Krug, 82 Ind. 58. But 
defects which do nc 4 ; appear from the 
complaint mus'. be set up in the answer. 
Wilhoit v. Cunningham, 87 Cal. ^53, 
25 Pac. 675. 

A copy of the deed of assignment 
need not be set out where it is not 
the basis of the action. Jewett v. 
Perrette, 127 Ind. 97, 26 N. E. 685; 
Cooper v. Perdue, 114 Ind. 207, 16 N. 
E. 140. But see Wheeler v. Hawkins, 
101 Ind. 486; Foster v. Brown, 65 Ind. 
234. 

86. Miller v. Goodman, 15 Tex. Civ. 
App. 244, 40 S. W. 743. See Rogers 
v. Coates, 38 Kan. 232, 16 Pac. 463. 
But the petition of such an as- 
signee intervening in an attachment 
suit should show an assignment valid 
on its face as against attaching cred- 
itors. Mttthai V. Conway, 2 App. Cas. 
(D. C.) 45. 

87. Conn. — Bulkeley V. Welch, 31 
Conn. 339. Ky. — German Ins. Bank 



ASSIGNMENT FOR TEE BENEFIT OF CREDITORS 77 

matured 88 and become defendant's property 88 at the time the assign- 
ment was made, it is unavailable. 

An equitable set-off may, however, be interposed although no legal 
obligation has yet matured. 90 



r. Jackson, 10 Ky. L. Eep. 1061. Minn. 
Laybourn v. Seymour, 53 Minn. 105, 
54 N. W. 941, 39 Am. St. Rep. 579. 
Mo. — Green v. Conrad, 114 Mo. 651, 
21 S. W. 839; Smuh V. Spengler, 83 
Mo. 408. Neb. — Salladin v. Mitchell 
42 Neb. 859, 61 N. W. 127. N. Y.— 
Richards v. La Tourette, 119 N. Y. 
54, 23 N. E. 531; Rothschild V. Mack, 
115 N. Y. 1, 21 N. E. 726. Pa.— 
Farmers' D. N. Bank v. Penn Bank, 
123 Pa. 283, 16 Atl. 761, 2 L. R. A. 
273; Meeder v. Goehring, 23 Pa. Sper. 
457. S. C. — Lowrie V. Williamson, 3 
McCord 247. Tenn. — Litterer v. Ber- 
ry, 4 Lea 193. 

But see Miller v. Cherry, 56 N. C. 
24. 

One holding in trust money or prop- 
erty of the assignor cannot in an ac- 
tion for the recovery thereof set off 
a note of the assignor held by him. 
Detroit First Nat. Bank v. E. T. Bar- 
num Wire, etc. Wks., 58 Mich. 121, 
24 N. W. 543, 25 N. W. 202, 55 Am. 
Rep. 660. 

A previous judgment against the as- 
signor may be set off in an action 
begun by him before the assignment 
and to which the assignee has be- 
come a party. Foster v. Central Nat. 
Bank, 93 N. Y. Supp. 603. 

88. U. S. — Brashear v. West, 7 Pet. 
608, 8 L. ed. 801. HI. — Taylor v. 
Weir, 63 111. App. 82. Mo. — Huse v. 
Ames, 104 Mo. 91, 15 S. W. 965; 
Storts v. Mills, 93 Mo. App. 201. N. Y. 
Fera V. Wickham, 135 N. Y. 223, 31 
N. E. 1028, 17 L. R. A. 456. Pa. — 
Chipman v. Philadelphia Ninth Nat. 
Bank, 120 Pa. 86, 13 Atl. 707. 

Conira. — Ky. — Kentucky Flour Co. 
v. Merchants' Nat. Bank, 90 Ky. 225, 
13 S. W. 910, 9 L. R. A. 108; Chenault 
v. Bush, 84 Ky. 528, 2 S. W. 16S; New 
Farmers & T. Bank v. Crowe, 26 Ky. 
L. Rep. 500, 82 S. W. 287. Minn. — 
Martin V. Pillsbury, 23 Minn. 175. 
Tenn. — Nashville Tr. Co. v. Nashville 
Fourth Nat. Bank, 91 Tenn. 336, 18 S. 
W. 822, 15 L. R. A. 710. 

"The reason of this is, that the 
assignee, in virtue of the assignment, 
becomes a trustee for the creditors. 



Tha status of the assignors, debtors 
and creditors is fixed by the assign- 
ment in trusc for the creditors." Fi- 
delity & Dep. Co. V. Haines, 78 Md. 
454, 28 Atl. 393, 23 L. R. A. 652. 

By Purchaser at Assignee's Sale. — 
One who is sued for the purchase price 
of property purchased at an assignee's 
sale cannot set off a claim against the 
assignor accruing ifter the assign- 
ment. Colo. — .lames r. McPhee, 9 Colo, 
486, 13 Pac. 535. N. J. — Bateman v. 
Connor, 6 N. J. L. 104. N. Y. — Otis 
r. Shants, 128 N. Y. 45, 27 N. E. 
955. N. C. — Capehart V. Etheridge, 
63 N. C. 353. Pa. — Wilmarth r. 
Mountford, 8 Serg. & R. 124. 

But one who purchases assiened 
goods from the assignor in possession, 
after the assignment and in ignorance 
thereof, may use any offset, in an ac- 
tion for the price by the assignee, 
which he could have used against the 
assignor. Wa-ner v. Hedly & Co., 1 
R. I. 357. 

Although the debt sued upon had 
not matured when the assignment was 
made, the defendant may set off his 
debt against the assignor which had 
become due previous to that time. 
Homer v. National Bank of Commera 
140 Mo. 225, 41 S. W. 790; In re 
Hatch, 155 N. Y. 401, 50 N. E. 49, 
40 L. R. A. 664. 

89. 'N. C. — Brown r. Brittain, 84 
N. C. 552. Pa. — Collins v. BfeEee, 
6 Atl. 396. Va. — Exchange Bank V. 
Knox, 19 Gratt. 739. 

90. Minn. — St. Paul. etc. Tr. Co. 
v. Leek, 57 Minn. 87, 58 N. W. 826, 
47 Am. St. Rep. 576. N. Y. — Groff 
V. Bliss, 19 Misc. 14, 42 N. Y. Supp. 
843. Tenn. — Nashville Tr. Co. V, 
Nashvill Fourth Nat. Bank, 91 Tenn. 
336, 18 S. W. B22, 15 L. R. A. 710. 

The assignor's equitable obligation 
to indemnify the defendant for the 
lather's liability as surety on the as- 
signor's bond may be set off, al- 
though the amount of such liability 
has not been determined at the time of 
the alignment. Momsen v. Noyes, 
105 Wis. 565, 81 N. W. 860. 

vol. m 



78 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 

B. Against Assignee. — 1. Upon Superior Claims or Liens Upon 
Property. — a. Generally. — A person having or claiming a title or 
lien superior to that of the assignee upon property claimed by the 
latter under the assignment may sue him to enforce such superior 
right 91 One claiming title and right of possession to such property 
is not obliged to proceed by replevin or trover, but may intervene 
in the assignment proceedings and ask for an order of delivery, 92 
or may seek relief from a court of chancery which has jurisdiction 
of the assignment proceedings. 93 



91. See Cal. — George v. Pierce, 123 
Cal. 172, 55 Pac. 775, 56 Pac. 53 Fla. 
Lockett v. Robinson, 31 Fla. 134, 12 
So. 649, 20 L. R. A. 67. Ky.— Long- 
dale Iron Co. v. Swift I. & S. Wks., 
91 Ky. 191, 15 S. W. 183, to set aside 
sale to assignor. Mich. -Abbott £. 
Chaffee, 83 Mich. 256, 47 N . W. 216. 
Mo.— Page v. Gardner, 20 Mo. 507. 
Ohio.— Jones v. Kilbreth, 49 Ohio St. 
401 31 N. E. 346. Ore. — J. L Case 
Thresh. Mach. Co. v. Campbell, 14 Ore. 
460, 13 Pac. 324, trover for conversion 
of mortgaged personalty. 

The assignee of a vendee is a proper 
party defendant in an action by a 
vendor to recover property fraudu- 
lently purchased and included in the 
assignment. Roome v. McGovern, 9 
Daly (N. Y.) 60. 

The statute giving supervision over 
assignments to the chancery court does 
not deprive a court of law of juris- 
diction over an action to vindicate 
a title alleged to be superior to that 
of the assignor and his assignee. Ed- 
wards v. Symo-is, 65 Mich. 348, 32 N. 
W. 796. 

Replevin Against Assignee. — Prop- 
erty claimed by an assignee under an 
assignment may be replevied, since it 
cannot be said to be in custodia legis 
if the assignor had no title — the as- 
signee obtaining only such title as 
his assignor had. Matthews V. Ott, 
87 Wis. 397, 58 N. W. 774. See also 
the following cases: U. S. — Jones V. 
McCormick Harv. Mach. Co., 82 Feci. 
295 27 C. A. 133. Md. — Ratcliffe 
v. Sangston, 18 Md. 383. Mich.— 
Farwell v. Mvers, 59 Mich. 179, 64 N. 
W 328; Coomer v. Gale Mfg. Co., 40 
Mich 691. Minn. — Thomas Mfg. Co. 
v Drew, 69 Minn. 69, 71 N. W. 921. 
N y. — Underbill v. Ramsey, 2 N. Y. 
Siipp. 451. Ore. — J. I. Case Thresh. 
Mach Co V. Campbell, 14 Ore. 460, 13 
Pac 324. Wash. — Starke v. Paine, 
85 Wis. 633, 55 N. W. 185. 

vol. in 



But see Hanchett v. Waterbury, 115 
111. 220, 32 N. E. 194; In re Wise, 
121 Iowa 359, 96 N. W. 872. This 
right to replevy goods passing into 
the hands of the assignee is not lost 
by suing the assignor in trover for 
the previous conversion of the re- 
mainder of the same lot of goods, nor 
by filing a claim with the assignee 
for the value of the latter. Singer v. 
Schilling, 74 Wis. 369, 43 N. W. 101. 
See Rhinelander v. National City 
Bank, 36 App. Div. 11, 55 N. Y. Supp. 
229. But an action of replevin be- 
ing an election to treat a sale of the 
goods as fraudulent cuts off the right 
to maintain assumpsit on the theory 
of a sale. Farwell v. Myers, 59 Mich. 
179, 26 N. W. 328. See Burrows v. 
Johntz, 57 Kan. 778, 48 Pac. 27; Har- 
gadine-McKittrick Dry Goods Co. v. 
Warden, 151 Mo. 578, 52 S. W. 593. 

The suit should be brought against 
thj defendant in his individual name. 
Hampshire Paper Co. v. Hunt, 9 N. Y. 
St. 81. 

A wrongful taking by the assignee 
need not be averred in an action of 
trover or conversion. King V. Fitch, 
2 Abb. Dec. (N. Y.) 508, 1 Keyes 
432. 

Failure to answer on the part of a 
voluntary assignee is an admission of 
the averments of the complaint, since 
the statute relieving the assignee of 
the necessity of denying claims against 
the estate applies only to the case of 
estates that are assigned by operation 
of law. Longdale Iron Co. v. Swift 
Iron & S. Wks., 91 Ky. 191, 15 S. W. 
183. 

92. In re Wise, 121 Iowa 359, 96 
N W. 872; Herring-Hall-Marvin Co. v. 
Moore (Miss.), 17 So. 385 (as where 
the title has been reserved under a 
conditional sale). 

93. Sawyer v. McAdie, 70 Mich. 
386, 38 N. W. 292, having resorted 



ASSIGNMENT FOR TEE BENEFIT OF CREDITORS 79 



b. Prerequisites. — Where the legal title to property has passed to 
the assignee, the property in some jurisdictions is in custodia legis, 9 * 
and the permission of the court must be secured before an inde- 
pendent suit can be instituted against him. 93 But where the action 
is based upon an alleged superior title or lien such consent is un- 
necessary. 96 

A demand is not a prerequisite to a suit against the assignee to 
recover property which his assignor obtained through fraud. 97 

Filing Claim. — It is not necessary that plaintiff should have filed 
his claim with the assignee, 98 and the fact that he ha& done so will not 
prevent his maintaining an independent suit on the same claim. " J 

Security for Costs. — A non-resident plaintiff in an action against an 
assignee may be required to furnish security for costs. 1 

c. Parties. — Creditors whose interests are antagonistic to those of 
the plaintiff are proper parties defendant, 2 and may intervene in the 

96. Babcock v. Maxwell, 21 Mont. 
507, 54 Pac. 943. 

97. Koch v. Lyon, 82 Mich. 513, 
46 N. W. 779; Hall v. Peckham, 8 R. 
I. 370. Compare In re Wise, 121 Iowa 
359, 96 N. W. 872; J. I. Case Thresh. 
Mach. Co. v. Campbell, 14 Ore. 460, 
13 Pac. 324. Contra, Goodwin v. Gold- 
smith, 49 N. Y. Super. 101, affirmed 
in 99 N. Y. 149, 1 N. E. 404; Cumiskey 
v. Lewis, 14 Daly (N. Y.) 466. See 
Roome v. McGovern, 9 Daly (N. Y.) 
60 (an oral demand upon the cus- 
todian and leaving him a written de- 
mand upon the assignee are sufficient). 
Where before the assignment a sale 
has been rescinded for fraud no de- 
mand is necessary. Wolff v. Zeller, 31 
Misc. 255, 64 N. Y. Supp. 129. 

A demand and refusal where essen- 
tial to the causj of action must be 
alleged. Cumiskey V. Lewis, 14 Daly 
466, 15 N. Y. St. 364. 

98. It is optional with a mortagee 
whether he foreclose or rely on ap- 
propriate orders of court f- the pro- 
tection of his security. In re Wind- 
horst, 107 Iowa 58, 77 N. W. 513. 

99. Rumley Co. V. Moore, 151 Ind. 
24, 50 N. E. 574, holding that he 
must first restore any payments made 
to him by the assignee out of the 
general fund. 

1. Tyndall's Estate, 6 W. N. C. 
(Pa.) 562. 

2. See Davies v. Fish, 19 Abb. N. 
C. (N. Y.) 24, creditors preferred by 
the assignment, where the plaintiff's 

iclaim would take all the assets. 



to such court, he is bound by the de- 
cision 

94. See supra, II, A, 2, a, note. 

95. Leuthold V. Young, 32 Minn. 
122, 19 N. W. 652 (but the failure to 
obtain such cor nt is not ground for 
demurrer) ; Penn Mut. Life Ins. Co. 
v. Fife, 15 Wash. 605, 47 Pac. 27 
(suit to foreclose chattel mortgage 
giving mortgagee the right to take 
possession of the property when his 
security is endangered). See Collins 
v. Brown, 12 Ky. L. Rep. 469, hold- 
ing that a mortgagee of property sub- 
sequently assigned should not be per- 
mitted to enforce his lien in a sep- 
arate suit where he would thereby 
burden the estate with unnecessary 
expense and sacrifice the interests of 
other creditors. But see Gilbert V. 
McCorkle, 110 Ind. 215, 11 N. E. 296; 
Julien v. Lalor, 47 Hun (N. Y.) 164. 

An independent action can-not be 
maintained by the state for his re- 
fusal to pay taxes on the assigned 
property, the appropriate remedy be- 
ing a motion or petition in the as- 
signment proceedings. Marathon 
County v. Barnes, 86 Wis. 663, 57 N. 
W. 961. 

A receiver who has been appointed 
upon the assignee's failure to qualify 
cannot be sued without leave of court. 
Scott v. Chambers, 62 Mich. 532, 29 
N. W. 94. 

Permission to sue once granted can- 
not be arbitrarily retracted after a 
suit has been begun in reliance there- 
on. Gilbert Hunt Mfg. Co. v. Wheel- 
er, 15 Wash. 594, 47 Pac. 26. 



Vol. Ill 



80 ASSIGNMENT FOB THE BENEFIT OF CBEDITOBS 



action, 8 but they are not necessary parties, 4 where no relief is sought 
against them. 5 

2. By Creditors of Assignor. — Actions and proceedings against 
the assignee by the assignor's creditors are elsewhere treated in this 

title. 6 

C. Intervention by Assignee. — The assignee's right to intervene 
in pending actions is governed by the general rules applicable to 
that subject. 7 He cannot, except by statute, 8 intervene as a matter 
of right in an action begun against his assignor before the making 
of the assignment. 9 He may, however, intervene in a suit against 
his assignor in which the property previously assigned has been 
attached. 10 

D. Actions on Assignee's Bond. — 1. Who May Sue. —Any person 
injured by a breach of the condition of an assignee's bond may sue 
thereon. 11 But before a creditor may sue there must have been a 



3. Mills v. Swearingen, 67 Tex. 269, 
3 S. W. 268, they are not bound to rely 
upon the assignee to defend their in- 
terests. 

It is within the discretion of the 
court to permit creditors to intervene 
in a suit against the assignee. Jewett 
v. Tucker, 139 Mass. 566, 2 N. E. 680. 
But creditors cannot intervene as a 
matter of right if the assignee is de- 
fending in good faith. Davies v. 
Eish, 111 N. Y. 681, 19 N. F. 284. 

4. Bircher v. St. Louis Sheet Metal 
O. Co., 77 Mo. App. 509, reversed on 
other grounds in 163 Mo. 461, 63 S. 
W. 691. See Walker v. Miller, 11 Ala. 
1067. 

5. Lockett v. Robinson, 31 Fla. 134, 
12 So. 649, 20 L. R. A. 67; National 
Bank of Deposit V. Sardy, 26 Misc. 
555, 57 N. Y. Supp. 625, affirmed in 
44 App. Div. 357, 61 N. Y. Supp. 155, 
-which is affirmed in 166 N. Y. 380, 59 
N. E. 922. 

He is a proper though not a neces- 
sary party, and should be brought in; 
but the failure to do so is not error. 
Wells v. Knox, 55 Hun 245, 8 N. Y. 
Supp. 58. 

6. See supra, II, D. 

7. Ashton v. Jones, 14 Neb. 426, 16 
N. W. 434; McClurg V. State Bindery 
Co., 3 S. D. 362, 53 N. W. 428, 44 Am. 
St. Rep. 799. See .generally the title 
"Intervention." 

8. Where the statute gives to the 
assignee all the rights of the assignor, 
he may intervene in an attachment 
suit beg n against the assignor before 
the assignment. Ringen Stove Co. V. 
Bowers, 109 Iowa _75, 80 N. W. £18. 

9. Md. — Stockett v. Goodman, 47 

vol. in 



Ml. 54. Mich. — Emerson v. Detroit S. 
& S. Co., 100 Mich. 127, 58 N. W. 659; 
Gott V. Hoschna, 57 Mich. 413, 24 N. 
W. 123. Neb. — Ashton v. Jones, 14 
Neb. 426, 16 N. W. 434. N. M.— 
Meyer v. Black, 4 N. M. 190, 16 Pac. 
620. R. I. — Waterman v. A. &. W. 
Sprague Mfg. Co., 14 R. I. 43. S. D. 
McClurg v. State Bindery Co., 3 S. D. 
362, 53 N. W. 428, 44 Am. St. Rep. 
799. Term. — Haynes v. Rizer, 14 Lea 
246; Lowenheim v. Ireland, 2 Baxt. 
214. 

See Richards V. Ludington, 60 Hun 
135, 14 N. Y. Supp. 510. 

With leave of court the assignee 
may intervene by interplea where the 
assignor has collusively failed to trav- 
erse the facts upon which the at- 
tachment is based. Farwell v. Jen- 
kins, 18 111. App. 491. See Sanger v. 
Flow, 48 Fed. 152, 1 C. C. A. 56. 

10. Commercial Nat. Bank v. Ne- 
braska State Bank, 33 Neb. 292, 50 
N. W. 157. But see Meyer v. Black, 
4 N. M. 190, 16 Pac. 620. 

Where assigned property is re- 
garded as in the custody of the court, 
the assignee should not intervene in 
proceedings in which it is unlawfully 
attached, but should ask the court in 
the assignment proceedings to pro- 
tect its custody in a summary man- 
ner. Sabin v. Adams, 5 Wash. 768, 
32 Pac. 793. Compare Bradley v. Bail- 
ey, 95 Iowa 745, 64 N. W. 758; State 
v. Rose, 4 N. D. 319, 58 N. W. 514, 
26 L. R. A. 593. 

A foreign assignee may intervene in 
an attachment proceeding asainst his 
assignor. Matthai V. Conway, 2 App. 
Cas. (D. C.) 45. 

11. State v. Boeppler, 63 Mo. App. 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 81 

determination of the part of the fund to which he is entitled. 12 A 
creditor who repudiates the assignment cannot claim the protection 
of the bond. 13 

A substituted assignee" or receiver 15 may sue upon the bond of his 
predecessor. 

The State. — The statute sometimes requires the action to be 
brought in the name of the state. 16 

2. Pleadings and Proof. — The complaint or petition must suf- 
ficiently aver a breach of the bond 17 and the facts entitling plaintiff 
to sue thereon. 18 

Where an affirmative defense is interposed, the facts constituting the 
same must be set out in the answer. 19 



151. See Eingenoldus v. Abresch, 113 
Wis. 410, 96 N. W. 817; Marathon 
County v. Barnes, 86 Wis. 663, 57 N. 
W. 961 (action by state for refusal 
to pay taxes). 

A creditor whose claim has been 
paid, but who has been compelled to 
give a refunding bond pending the 
final determination of his right to 
payment, may sue on the assignee's 
bond. German Bank v. Haller, 103 
Tenn. 73, 52 S. W. 288. 

A third person whose property has 
been converted by the assignee can- 
not sue his bondsmen. Best v. John- 
son, 78 Cal. 217, 20 Pac. 415, 12 Am. 
St. Kep. 41, 3 L. R. A. 168. "The 
creditors and debtor are alone inter- 
ested in the amount and sufficiency 
of the bond." 

Though the bond covenants with the 
assignor alone, it is for the benefit of 
all persons entitled to share in the 
assets. Stone v. Hart, 23 Ky. L. Rep. 
1777, 66 S. W. 191. 

Any number of actions may be au- 
thorized by the statute. Matter of 
Stockbridge, 10 Daly (N. Y.) 33. 

12. Stone v. Hart, 23 Ky. L. Rep. 
1777, 66 S. W. 191; Yarbrough v. Col- 
ley, 5 Ky L. Rep. 683, 6 Ky. L. Rep. 
121. But see Berrvhill v. Peabody, 77 
Minn. 59, 79 N. W. 651; Craddock v. 
Orand, 72 Tex. 36, 12 S. W. 208. 

A purchaser at a sale by the as- 
signee cannot sue the sureties for the 
assignee's failure to deliver the prop- 
erty, until he has obtained an order 
of court for the delivery. State v. 
Scott, 42 Mo. App. 203. 

Where the assignee has abandoned 
the trust and left the state, a suit in 
equity may be maintained against the 
assignee and his sureties to enforce 



the trust and secure the allowance 
and payment of plaintiff's claim. And 
"having assumed jurisdiction for th : -? 
purpose the court will not stop short 
of ascertaining and enforcing the 
liabilities of the sureties." An- 
drews V. Ford, 106 Ala. 173, 17 So. 
446. 

Statute otherwise providing. Uni- 
versal Lock, etc. Co. v. Blake, 84 Mo. 
App. 478; Hill v. American Surety 
Co., 107 Wis. 19, 81 N. W. 1024, 82 
N. W. 691. 

13. In re Cantor, 31 App. Div. 19, 
52 N. Y. Supp. 382. 

Non-consenting creditors are en- 
titled by statute to sue under certain 
circumstances. See Craddock v. Orand, 
72 Tex. 36, 12 S. W. 208. 

14. Prosser V. Hartlev, 35 Minn. 
340, 29 N. W. 156: Phillips v. Ross, 
36 Ohio St. 458. See Berrvhill v. Pea- 
body, 77 Minn. 59, 79 N. W. 651. 
Contra, State v. Boeppler, 63 Mo. App. 
151. 

15. Prosser v. Hartley, 35 Minn. 
340, 29 N. W. 156. 

16. Jackson v. Rounds, 59 Ind. 116; 
State v. Boeppler, 63 Mo. App. 151. 
See Prosser v. Hartley, 35 Minn. 340, 
29 N. W. 156. 

17. Mills v. Skinner, 13 Conn. 436; 
Craddock r. Orand, 72 Tex. 36. 12 S. 
W. 208. See Thompson v. Childress, 
1 Tenn. Ch. 369. But see mil v. Amer- 
ican Surety Co., 107 Wis. 19, 81 N. 
W. 1024, 82 N. W. 691. 

18. Craddock V. Orand, 72 Tex. 36. 
12 S. W. 208. 

19. Morrill V. Richardson, 9 Pick. 
(Mass.) 84. 

Plea in Abatement. — Th^ defense 
that there has been no settlement of 
the assignee's account must be raised 



Vol. IH 



82 ASSIGNMENT FOB TEE BENEFIT OF CBEDITOBS 



Tne proof must conform to the pleading. 20 

3. Prior Adjudication. — The assignee's sureties are concluded by 
a prior adjudication as to the money or property for which he is 
accountable, and other matters connected with the trust, 21 even 
though they had no notice of the proceedings 22 or right to appeal. 
Such an adjudication is likewise conclusive upon creditors or other 
parties seeking indemnity from the sureties. 24 

4. Damages and Costs. — The damages are the amount of the plain- 
tiff's duly established claim, 25 or his proportionate share of the 

assets 2 ^ 

Costs. — Plaintiff is also entitled to his costs, unless the suit is equit- 
able in its nature. 27 

Creditors Not Parties. — Damages cannot be awarded to creditors 

who are not parties to the action. 28 

IV REMEDIES OF ASSIGNOR. — A. Generally. — The assignor 
may continue actions pending at the time of the assignment, 29 and 
he may also enforce rights of action not covered by the assignment. 30 
But he cannot commence an action on claims or rights that have 
passed to the assignee, 31 unless they have for some reason reverted 
to him 32 The assignor has, however, a sufficient interest in the 
property assigned to enable him to maintain a suit for the enforce- 
by plea in abatement; it is waived 
by an answer to the merits. Hill v. 
American Surety Co., 107 Wis. 19, 81 
N W. 1024, 82 N. W. 691. 
' 20. Clark V. Mix, 15 Conn. 152; 
State v. McFarland (Tenn.), 35 S. W. 

1007. , ,. . „ . 

See generally 2 Encyclopaedia of Evi- 
dence, 28 et seq. 

21 111. — Moulding v. Wilbartz, 169 
HI 422, 48 N. E. 189. Ind. — State 
v. Musser, 4 Ind. A, p. 407, 30 N E. 
944 Ohio. — Walsh v. Miller, 51 Ohio 
St *462, 38 N. E. 381; Garver V. Tis- 
inger, 46 Ohio St. 56, 18 N. E. 491. 
Pa. — Patterson's Appeal, 4r Pa. 342; 
Little v. Com., 48 Pa. 337; Com. v. 
Dumn, 17 Pa. Super. 90. 

See State ex rel. Pruitt v. National 
Surety Co., 76 Mo. App. 227; and the 
title "Principal and Surety." 

Prim?. Facie Evidence Only. — Pier- 
point V. McGuire, 13 Misc. 70, 34 N. Y. 
Supp. -:0; People v. White, 28 Hun 
(N. Y.) 289. 

22. National Surety Co. V. Arter- 
burn, 110 Ky. 832, 62 S. W. 862. 

23. State v. National Surety Co., 
76 Mo. App. 227. 

24. Arterburn v. National Surety 
Co., 23 Ky. L. Eep. 283, 62 S. W. 
864. 

25. State v. Hart, 38 Mo. 44. see 



also In re Stelle, 34 N. J. Eq. 199. 

Interest. — The judgment bears in- 
terest, but no interest is allowable on 
the claim as part of the damages. State 
v. Hart, 38 Mo. 44. 

26. Lahn V. Johnston, 32 Ohio St. 
590, in estimating the proportion due 
plaintiff, only those claims which have 
been presented and allowed can be 
considered. 

27. Boland v. Benson, 50 Wis. 225, 
6 N. W. 819. See Merchants' Bank v. 
Chapin, 4 Ohio Dec. (reprint) 403. 

28. Hays v. Comstock-Castle Stove 
Co., 70 Ark. 151, 66 S. W. 649, even 
though the plaintiffs are suing on be- 
half of themselves and all other cred- 
itors who may become parties. 

29. Pee supra, I. 

30. Hauser v. Tate, 20 Ky. L. Eep. 
1716, 49 S. W. 475. 

An assignment by a partnership 
does not deprive a partner of ^ the 
riffht to sue with reference to his indi- 
vidual property. Cleveland V. Carr 
(Tex. Civ. App.), 40 S. W. 406. 

31. Stoever v. Stoever, 9 Serg. & 
E. (Pa.) 434; Smith v. Chicago, etc. 
E. Co., 23 Wis. 267. 

32. See Carlisle v. Dodds, 15 Ky. 
L. Eep. 784; Low v. Mussey, 36 Vt. 
183. 



vol. in 



ASSIGNMENT FOR THE BENEFIT OF CREDITORS 83 



ment of the trust, 33 to compel the assignee to make an accounting, 84 
or to otherwise protect such reversionary interest. 35 But he cannot 
complain of the manner in which the fund is distributed amongst the 
various claimants. 36 

B. Against Unlawful Attachment. — The assignor has such a 
reversionary interest in the assigned property that he may move 
to dissolve an attachment, 37 but not, it has been held, on the ground 
that the property attached belongs to the assignee. 38 Nor can he 
sue to restrain an attachment suit on the ground that the plaintiff 
will thereby secure more than his equitable share of the assigned 
property. 39 And he cannot maintain an action for damages for a 
wrongful attachment of the assigned property. 40 



Where the assignor at the time of 
the assignment is in possession under 
a lease, and with the consent of the 
assignee and creditors he remains in 
possession and sublets a portion of the 
premises, he may maintain an action 
against such subtenants. Cunning v. 
Tittabawassee Boom Co., 88 Mich. 237, 
50 N. W. 141. 

33. Kutherford v. Rutherford, 14 
Ky. L. Rep. 397. See Gschwend v. Es- 
tes, 51 Cal 134; Nodine v. Wright, 37 
Ore. 411, 61 Pac. 734. 

34. U. S. — Carpenter v. Robinson, 
1 Holmes 67, 5 Fed. Cas. No. 2,431. 
Minn. — Clark v. Stanton, 24 Minn. 
232. N. Y. — Matter of Townsend, 14 
Daly 76. N. C — Tomlinson v. Clay- 
well, 57 N. C. 317. Tex. — Hunter v. 
Hubbard, 26 Tex. 537. 

35. He may sue to set aside a sale 
upon the foreclosure of a mortgage 
executed by him prior to the assign- 
ment. Delaware & L. R. Co. v. Scran- 
ton, 34 N. J. Eq. 429. But he can- 
not sue to enforce a contract made 
with the mortgagee after the assign- 



ment. Monteith v. Hogg, 17 Ore. 270, 
20 Pac. 327. 

But he cannot sue for the conver- 
sion of the assigned property. Mey- 
ers v. Briggs, 11 R. I. 180. 

36. Ashton v. Jones, 14 Neb. 426, 
16 N. W. 434. 

37. Kan. — Cox Mfg. Co. v. Au- 
gust, 51 Kan. 61, 32 Pac. 636. Minn. 
Winona First Nat. Bank V. Randall, 
38 Minn. 382, 37 N. W. 799. Pa. — 
Holland v. Atzerodt, 1 Walk. 237. S. D. 
Quebec Bank v. Carroll, 1 S. D. 372, 
47 N. W. 397. Wis. — Keith V. Arm- 
strong, 65 Wis. 225, 26 N. W. 445. 

Contra. — Chandler v. Nash, 5 Mich. 
409. See also Price V. Reed, 20 Mich. 
72. See the title "Attachment." 

38. Quebec Bank v. Carroll, 1 S. D. 
372, 47 N. W. 397. 

39. Ashton v. Jones, 14 Neb. 426, 
16 N. W. 434. 

40. Cleveland Coal Co. v. Sloan, 90 
Ky. 308, 14 S. W. 279. Roby v. Mey- 
er, 84 Tex. 386, 19 S. W. 557; 
Feeheimer v. Ball, 1 White & W. Civ. 
Cas. (Tex.) § 766. 



VoL in 



ASSIGNMENTS 

By EUGENE A. GILM.OEE, A.B., LL.B. 

Author of "Partnership," "Cases on Partnership, " Co-editor of "Cases 
on Criminal Conspiracy in Restraint of Trade" in the Documentary 
History of the American Industrial Society; Professor of Law 
in the University of Wisconsin. 



I. REMEDIES, • 86 

A. At law, 86 

1. In General, 86 

2. Actions in Name of Assignor, 89 
a. Objection by Debtor, 91 

h. Control of Action by Assignee, 91 

c. Protection of Assignor, 91 

d. When Assignor Dies, 92 

e. When Assignor Becomes Bankrupt, 92 

3. Actions in Name of Assignee, 92 

a. The Rule, 92 

b. Apparent Exception. — Promise by Debtor, 93 

B. In Equity, 95 

1. In General, 95 

2. Suit in Assignee's Name, 96 
G. Statutory Modifications, 96 

1. In General, 96 

2. Glioses in Action Ex Delicto, 99 

3. Effect of Statutes, 100 

a. As to Assignability, 100 

b. vis to Remedies, 101 

(I.) Statutory Remedies Cumulative, 101 
(II.) Statutory Remedies Exclusive, 101 

c. Choses N on- Assignable Under Statute, 103 

d. Assignments Not Conforming to Statute, 103 

4. Real Party in Interest, 103 

5. What Law Governs, 104 

D. Partial Assignments, 105 

1. At Law, 105 

2. In Equity, 107 

3. Statutory Modifications, 109 

n. PARTIES, no 
vol. in 



ASSIGNMENTS 85 

A. At Law, 110 

1. Action by Assignor. — Joinder of Assignee, 110 

2. Action by Assignee. — Joinder of Assignor, 110 

3. Beneficial Interest in Assignor or Another, 111 

4. Assignee as Real Party in Interest, 112 

5. Trustee of Express Trust, 114 

6. In Partial Assignment, 114 

7. Misjoinder of Assignor, 115 

B. In Equity, 115 

1. In General, 115 

2. Suit by Assignor. — Joinder of Assignee, 116 

3. Suit Against Assignor, 117 

4. Suit by Assignee. — Joinder of Assignor, 117 

a. Absolute Assignment , 117 

b. Assignment Not Absolute, 118 

C. Amendments as to Parties, 118 

D. Assignments Pendente Lite, 119 

1. At Law, 119 

2. In Equity, 121 

HI. PLEADINGS, 121 

A. In General, 121 

B. Of Plaintiff, 122 

1. In General, 122 

2. Particular Averments, 123 

a. Alleging Beneficial Interest, 123 

b. Fact of Assignment, 124 

c. Manner and Form of Assignment, 127 

d. Consideration, 128 

e. Demand and Notice, 128 

(I.) In Actions Against Debtor, 128 
(II.) In Actions Against Assignor, 129 

f. Assent or Promise of Debtor, 129 

g. Nonpayment or Nonperformance, 130 

3. Amendments, 130 

vol m 



86 ASSIGNMENTS 

C. Of Defendant, 130 

1. In General, 130 

2. Defences Against Assignor, 131 

3. Denying Plaintiff's Interest or Bight To Sue, 131 

4. Fact of the Assignment, 132 

5. Validity of Assignment, 133 

6. Consideration, 133 

7. Payment, 134 

8. Wan* 0/ Notice, 134 

IV. ISSUES AND PROOF, 134 

A. In General, 134 

B. General Issue, 135 

C. Fanance, 135 

D. Burden of Proof, 136 

E. Questions for Jury, 137 

- F. Questions for Court, 138 

CROSS-REFERENCES: 

Assignment for the Benefit of Creditors ; Bills and Notes ; 

'Banks and Banking; Survival of Actions. 

I. REMEDIES. — A. At Law. — 1. In General. — By the early 
common law rule choses in action were not assignable, and conse- 
quently an assignee in an attempted assignment acquired no rights 
at law. 1 In equity, however, the assignee was regarded as the 
beneficial owner and his rights were recognized and protected. 2 



1. Non-Assignable at Common Law. 
The statement in the text is so gener- 
ally established that exhaustive cita- 
tion of authorities in support of it is 
unnecessary. The following cases are 
typical and state the rule with the rea- 
sons for it: U. S. — Tiernan v. Jack- 
son, 5 Pet. 580, 8 L. ed. 234; Joseph 
Dixon Crucible Co. v. Paul, 167 Fed. 
784, 93 C. C. A. 204. Ala. — Price v. 
Talley's Admr., 18 Ala. 21. 111. — Olds 
v. Cummings, 31 111. 188. Mass. — 
Coolidge v. Ruggles, 15 Mass. 387. Mo. 
Isenhour v. Barton County, 190 Mo. 163, 
88 S. W. 759. N. Y. — Thallhimer v. 
Brinckerhoff, 3 Cow. 623, 15 Am. Dec. 
308. Ore. — Little V. Portland, 26 Ore. 
235, 242, 37 Pac. 911. Va. — Stebbins 
v. Bruce, 80 Va. 389. Eng. — Wright 
t;. Wright, 1 Ves. Sr. 409, 27 Eng. Re- 

voi. in 



print 1111. Can. — Eakins v Gawley, 
33 U. C. Q. B. 178. 

2. Assignee Protected in Equity. — 
U. S. — Union Tr. Co. v. Bulkeley, 150 
Fed. 510, 80 C. C. A. 328; In re 
MaCauley, 158 Fed. 322; Mitchell v. 
Great Works Mill. Co., 2 Story 648, 17 
Fed. Cas. No. 9,662. Ala. — Goodwyn 
v. Lloyd, 8 Port. 237. 111. — Pearson's 
Exrs. v. Luecht, 199 111. 475, 65 N. E. 
363; North Chicago St. R. Co. v. Ack- 
ley, 58 HI. App. 572. Ind. — Slaugh- 
ter v. Foust, 4 Blackf. 379. Ely. — 
Brenckenridge V. Churchill, 3 J. J. 
Marsh. 11. Md. — National Bank v. 
Baltimore, etc. R. Co., 99 Md. 661, 
59 Atl. 134, 105 Am. St. Rep. 321. 
Mass. — Sawyer v. Cook, 188 Mass. 163, 
74 N. E. 356. Miss. — Sc^tt v. Metcalf , 
13 Smed. & M. 563. Mo. — Dobyns c. 



ASSIGNMENTS 



87 



At an early date courts of law, following the rule in equity, also 
recognized assignments, and now universally protect 3 and make 
available the rights of assignees. 4 The protection thus afforded is 



McGovern, 15 Mo. 662. N. J. — Sulli- 
van v. Visconti, 68 N. J. L. 543, 53 Atl. 
598; Cogan v. Conover Mfg. Co., 69 
N. J. Eq. 358, 60 Atl. 408; Sperry, etc. 
Co. V. Hertzberg, 69 N. J. Eq. 264, 60 
Atl. 368. N. Y. — Holmes r. Evans, 129 
N. Y. 140, 29 N. E. 233. Pa. — Kountz 
V. Kirkpatrick, 72 Pa. 376, 13 Am. Eep. 
687; Trexler v. Kuntz, 36 Pa. Super. 
352 (holding that an entirely new title 
in equity arises, independent of the 
legal title of the assignor). Tenn. — 
Bradford v. Montgomery Furn. Co., 115 
Tenn. 610, 92 S. W. 1104, 9 L. R. A. 
979. Tex. — Campbell v. J. E. Grant 
Co., 36 Tex. Civ. App. 641, 82 S. W. 
794. Eng. — Townshend v. Windham, 2 
Ves. 1, 28 Eng. Reprint 1: Wright v. 
Wright, 1 Ves. Sr. 409, 27 Eng. Re- 
print 1111; Sqib v. Wyn, 1 P. Wms, 
378, 24 Eng. Reprint 432; Tolhurst V. 
Associated Portland Cement Mnfrs. 
(1903) App. Cas. 414. 

Origin of the Equity Rule. — "This 
equitable modification of the ancient 
common-law rule was the outgrowth of 
a commercial era, made necessary to 
adapt it to the condition of a trading 
people." Per Moore, J., in Little v. 
Portland, 26 Ore. 235, 242, 37 Pac. 
911. 

3. Assignee Protected. — U. S. — 
Welch v. Mandeville, 1 Wheat. 233, 4 
L. ed. 79. 111. — Hughes v. Trahern, 64 
111. 48; Fitzpatrick v. Beatty, 6 111. 454. 
Me. — Pollard v. Somerset Mut. F. Ins. 
Co., 42 Me. 221. N. H. — Sanborn v. 
Little, 3 N. H. 539. N. Y. — Allen v. 
Hudson River Mut. Ins. Co., 19 Barb. 
442; Boynton v. Clinton, etc. Mut. Ins. 
Co., 16 Barb. 254; Eels v. Finch, 5 Johns. 
193. Pa. — Buchanan v. Taylor, Add. 
155. Vt. — Halloran v. Whitcomb, 43 
Vt. 306; Blin v. Pierce, 20 Vt. 25. Va. 
Mackie v. Davis, 2 Wash. 219, 1 Am. 
Dec. 482. W. Va. — Clarke v. Hoge- 
man, 13 W. Va. 718. 

4. Assignee's Rights Enforceable at 
Law. — U. S. — Piatt v. Jerome, 19 
How. 384, 15 L. ed. 623; Winchester v. 
Hackley, 2 Cranch 342, 2 L. ed. 299; 
Field v. Biddle, 2 Dall. 171, 1 L. ed. 
335; Inglis v. Inglis, 2 Dall. 45, 1 L. ed. 
282; McCullum v. Coxe, 1 Dall. 139, 1 L. 
ed. 72; Wheeler v. Hughes, 1 Dall. 23, 1 



L. ed. 20; Greene v. Darling, 5 Mason 
201, 10 Fed. Cas. No. 5,765; Corser v. 
Craig, 1 Wash. C. C. 621. 6 Fed. Cas. 
No. 3,255; Campbell v. Hamilton, 4 
Wash. C. C. 92, 4 Fed. Cas. No. 2.359; 
Bholen v. Cleveland, 5 Mason 174, 3 
Fed. Cas. No. 1,381. Conn. — Bishop v. 
Holcomb, 10 Conn. 444; Camp V. Tomp- 
kins, 9 Conn. 545; Lyon P. Summers, 
7 Conn. 399; Colbourn v. Rossiter, 2 
Conn. 503. Ga. — Sheftall v. Clay, R. 
M. Charlt. 7. 111. — Morris v. Cheney, 
51 111. 451; Mansfield r. Hoagland, 46 
HI. 359; Hodson v. McConnel, 12 111. 
170; Chapman V. Shattuck, 8 111. 49; 
Creighton v. Hvde Park, 6 HI. App. 
272. Ky. — Talbot v. Cook, 7 T. B. 
Mon. 438; Clark v. Bovd, 6 T. B. Mon. 
293; Rawlins v. Timberlake, 6 T. B. 
Mon. 225; Harrison v. Burgess, 5 T. 
B. Mon. 418; Sharp v. Eccles, 5 T. B. 
Mon. 67; M'Mormac V. Smith, 3 T. B. 
Mon. 429; Armstrong v. Flora, 3 T. 
B. Mon. 42; Schooling v. M'Gee, 1 
T. B. Mon. 232; Robbins V. Holley, 
1 T. B. Mon. 191. La. — Carlin V. 
Durmartrait, 8 Mart. (N. S.) 212. Me. 
Moody v. Towle, 5 Me. 415; Swett v. 
Green, 4 Me.- 384; Robbins V. Bacon, 
3 Me. 346; Clark v. Rogers, 2 Me. 
143; Dunning v. Sayward, 1 Me. 366. 
Md. — Wallis v. Dil'ley, 7 Md. 237; 
Owings V. Low, 5 Gill & J. 83; Green 
r. Johnson, 3 Gill & J. 389. Mass. — 
Osborne V. Jordan, 3 Gray 277; Palmer 
v. Merrill, 6 Cush. 282, 52 Am. Dec. 
782; Sargent v. Essex Marine R. Corp., 
9 Pick. 202; Sprague v. Baker, 17 Mass. 
589; Jenkins v. Brewster, 14 Mass. 291; 
Skinner r. Somes, 14 Mass. 107; Jones 
v. Witter, 13 Mass. 304; Cutts V. Per- 
kins, 12 Mass. 206; Crocker v. Whit- 
ney, 10 Mass. 316; Dawes v. Boyls- 
ton, 9 Mass. 337, 6 Am. Dec. 72; Boyls- 
ton v. Greene, 8 Mass. 465; Gould v. 
Newman, 6 Mass. 2-0: Andrews V. Her- 
ring, 5 Mass. 210; Perkins r. Parker, 
1 M;iss. 117. Miss. — Tully '•. Herrin, 
44 Miss. 626; Tombigbv R. Co. v. Bell, 
7 How. 216; Fitch r. Stamps, 6 How. 
487. Mo. — Loewenberg r. DeVoigne 
(Mo. App.), 1-3 S. W. 99. N. H. — 
Garland v. Ilarringto ., 51 N. H. 509; 
Conway v. Cutting, 51 N. H. 409; 
Thompson v. Emery, 27 N. H. 269; 

vol. m 



88 



ASSIGNMENTS 



found in the refusal of a court of law to recognize a release by 
the assignor of the assigned chose subsequent to the assignment, 5 
or in disallowing the debtor's plea of payment 6 or set-off, 7 after 
notice of the assignment ; or in protecting the assignee against garn- 
ishment process by a creditor of the assignor, 8 or in permitting the 
assignee to enforce the chose in the name of the assignor. 9 



Duncklee v. Greenfield Steam Mill Co., 
23 N. H. 245; Gordon v. Drury, 20 N. H. 
353; Barrett V. Barron, 13 N. H. 150; 
Farnsworth v. Sweet, 5 N. H. 267; San- 
born V. Little, 3 N. H. 539; Sumner 
v. Stewart, 2 N. H. 39. N. J. — Par- 
sons V. Woodward, 22 N. J. L. 196; 
Sloan V. Summers, 14 N. J. L. 509; 
Belton V. Gibbon, 12 N. J. L. 76; Bar- 
row v. Bispham, 11 N. J. L. 110. N. Y. 
Thalimer v. Brink erhoff, 20 Johns. 386; 
Briggs V. Dorr, 19 Johns. 95; Henry 
v. Brown, 19 Johns. 49; Dawson v. 
Coles, 16 Johns. 51; Martin v. Hawks, 
15 Johns. 405; Anderson v. VanAlen, 
12 'Johns. 343; Kaymond v. Squire, 11 
Johns. 47; Tuttle v. Bebee, 8 Johns. 
152; Andrews v. Beecher, 1 Johns. Cas. 
411; Johnson V. Bloodgood, 1 Johns. 
Cas. 51; Wardell v. Eden, Col. & C. 
Cas. 137. Ohio. — M 'Cutchen v. Keith, 
2 Ohio 262; Clark v. Boyd, 2 Ohio 
56; Numlin V. Westlake, 2 Ohio 24. 
Pa. — Kountz v. Kirkpatrick, 72 Pa. 
376, 385; Eamsey's Appeal, 2 Watts 
228; Metzgar v. Metzgar, 1 Eawle 227; 
Boulden v. Hebel, 17 Serg. & E. 312; 
Aldricks V. Higgins, 16 Serg. & E. 
212; Brindle v. Mcllvaine, 9 Serg. & 
B. 74; Morgan V. Bank of North Amer- 
ica, 8 Serg. & E. 73, 11 Am. Dec. 
575; Bury v. Hartman, 4 Serg. & E. 
175; Solomon V. Kimmel, 5 Binn. 232; 
Steele v. Phoenix Ins. Co., 3 Binn. 
306; Canby V. Eidgway, 1 Binn. 496; 
Eundle v. Ettwein, 2 Yeates 23; 
Stevens v. Stevens, 1 Ashm. 190; Wis- 
tar v. Walker, 2 Browne 166. S. C. — 
Smith V. Lyons, Harp. 334; Stoney V. 
McNeill, Harp. 156; Wadsworth v. 
Griswold, Harp. 17; Ware v. Key, 2 
McCord 373; Farr v. ,'Hemmingway, 
2 Treadw. 753. Vt. — Stiles V. Farrar, 
18 Vt. 444; Titchout v. Cilley, 3 Vt. 
415; Lampson v. Fletcher, 1 Vt. 168, 
18 Am. Dec. 676; Strong v. Strong, 
2 Aik. 373. Va. — Stebbins V. Bruce, 
80 Va. 389. Wash. — Dickerson v. Spo- 
kane, 26 Wash. 292, 66 Pac. 381. 
W. Va. — Wellsburg First Nat. Bank 



v. Kimberlands, 16 W. Va. 555. Eng. 
Master V. Miller, 4 T. E. 320, 340, 
100 Eng. Eeprint 1042. 

5. Release by Assignor Ineffective. 
U. S. — Welch v. Mandeville, 1 Wheat. 
233, 4 L. ed. 79. Colo. — Fassett v. 
Mulock, 5 Colo. 466. Ky. — Marr v. 
Hanna, 7 J. J. Marsh. 642, 23 Am. 
Dec. 449. Mass. — St. Johns v. Charles, 
105 Mass. 262; Cutler v. Haven, 8 
Pick. 489; Eastman v. Wright, 6 Pick. 
316; Parker v. Grout, 11 Mass. 157, 
note. Miss. — Parker v. Kelly, 10 
Smed. & M. 184. Neb. — Lipp v. South 
Omaha Land Syndicate, 24 Neb. 692, 
40 N. W. 129. N. H. — Duncklee v. 
Greenfield Steam Mill Co., 23 N. H. 
245; Webb v. Steele, 13 N. H. 230. 
N. Y. — Wheeler v. Wheeler, 9 Cow. 
34; Briggs v. Dorr, 19 Johns. 95; Eels 
V. Finch, 5 Johns, 193. Vt. — Lamp- 
son v. Fletcher, 1 Vt. 168, 18 Am. Dec. 
676. 

6. Md. — Shriner v. Lamborn, 12 Md. 
170. Miss. — Tombigbee R. Co. v. Bell, 
7 How. 216. N. Y. — Hochberger v. 
Ludvigh, 63 Misc. 313, 116 N. Y. Supp. 
696 (assignee permitted to sue the re- 
ceiver of the assignor to whom the 
payment had been made); Ten Broeck 
v. DeWitt, 10 Wend. 617. 

7. Pass v. McEhea, 36 Miss. 143; 
Bradt v. Koon, 4 Cow. (N. Y.) 416; 
Anderson v. Van Alen, 12 Johns. (N. 
Y.) 343. 

8. Garnishment or Attachment.— 
Ark. — Campbell v. Sneed, 9 Ark. 118. 

Colo Chamberlin v. Gilman, 10 Colo. 

94, 14 Pac. 107. Ga. — Haas v. Old 
Nat. Bank, 91 Ga. 307, 18 S. E. 188. 
111. — Savage v. Gregg, 150 111. 161, 37 
N. E. 312; Pressor v. McCord, 96 111. 
389; Morris V. Cheney, 51 111. 451; 
Carr V. Waugh, 28 111. 418; Dehner V. 
Helmbacher Forge & E. Mills, 7 111. 
App. 47. Mass. — Gardner v. Hoeg, 18 
Pick. 168; Willard v. Sturtevant, 7 
Pick. 193. Tenn. — Johnson v. Irby, 8 
Humph. 654. 

9. See infra, I, A, 2. 



Vol. Ill 



ASSIGXMRNTS 



89 



2. Actions in Name of Assignor. — In following the rale of equity 
and making assignments effective, courts of law do not consider 
the chose itself as capahle of assignment. The legal title is re- 
garded as still remaining in the assignor; the assignment, however, 
is treated as in the nature of a declaration of a trust by the assignor 
for the benefit of the assignee, 10 and confers upon the assignee an au- 
thority to bring an action at law in the name of the assignor, the 
holder of the legal title, and reduce the chose to possession. 11 There- 
fore, unless the rule is modified by statute, 12 or unless the chose 
is assignable at law, 13 or unless the right represented by the chose 
is equitable in its nature and cognizable only in equity, 14 the assignee 



10. Assignment a Declaration of 
Trust. — 111. — Chapman r. bhattuck, 8 
111. 49; Phillips r. Wilson, 25 111. App. 
427. Mass. — Foss v. Lowell Five Cents 
Savings Bank, 111 Mass. 285; East- 
man v. Wright, 6 Pick. 316. See also 
Moshcr V. Allen, 16 Mass. 451. Mich. 
Park v. Toledo, etc. R. Co., 41 Mich. 
352, 3 N. W. 1032; Ellis r. Secor, 31 
Mich. 185, 18 Am. Rep. 178. N. J. — 
Sullivan r. Visconti, 68 N. J. L. 543, 
53 Atl. 598. N. Y. — Brown v. Feeter, 
7 Wend. 301; Worden V. Orange County 
Bank, 2 Wend. 245. Pa. — Tritt V. 
Colwell, 31 Pa. 228; Pierce V. McKee- 
han, 3 Pa. 136, 45 Am. Dec. 635; Hart- 
man v. Dowdel, 1 Rawle 279; Bury 
V. Hartman, 4 Serg. & R. 175. Tenn. 
Johnson r. Donohue, 113 Tenn. 446, 83 
S. W. 360; Morrison v. Deaderick, 10 
Humph. 342. Can. — Ham v. Ham, 6 
U. C. C. P. 37. 

11. Ala. — Haden v. Walker, 5 Ala. 
860. Conn. — Smith v. Russell, 17 Conn. 
105. 111. — McKinney V. Alois, 14 111. 
33; Orr r. Thompson, 9 III. 451; Phil- 
lips v. Wilson, 25 111. App. 427. la. — 
Roberts v. Smith, Morris 426. Ky. — 
Cobb v. Thompson, 1 A. K. Marsh.- 507. 
Me. — Matherson V. W r ilkinson, 79 Me. 
159, 8 Atl. 684; Ballard r. Greenbush, 
24 Me. 336. Md. — McNulty v. Cooper, 
3 Gill & J. 214. Mass. — Foss v. Lowell 
Five Cents Sav. Bank, 111 Mass. 285; 
Riley v. Taber, 9 Grav 372; Grover 
V. Grover, 24 Pick. 261, 35 Am. Dec. 
319; Amherst Academy v. Cowls, 6 
Pick. 427, 17 Am. Dec. 387. N. J. — 
Parsons v. Woodward, 22 N. J. L. 196; 
Sloan r. Summers, 14 N. J. L. 509. 
N. C. — Waterman v. Williamson, 35 
N. C. 198. Tenn. — East Tennessee, 
etc. R. Co. v. Henderson, 1 Lea 1; Simp- 
son v. Moulden, 3 Coldw. 429. Tex. — 
Morris v. The Schooner Leona, 62 Tex. 



35. Eng. — Pickford v. Ewington, 4 
Dowl. P. C. 453; Winch v. Keelev, 1 
T. R. 619, 99 Eng. Reprint 1284. 

The assignee is entitled to all the 
remedies available to his assignor. 
U. S. — Hartford Fire Ins. Co. V. Erie 
R. Co., 172 Fed. 899, assignor's right 
to sue in federal courts. Mich. — Mid- 
land County Sav. Bank v. T. C. Prouty 
Co., 158 Mich. 656, 123 N. W. 549, 
133 Am. St. Rep. 401, vendor's lien. 
N. C. — Anders V. Gardner, 151 N. C. 
604, 66 S. E. 665, injunction against 
breach of the assigned contract. 

The scope of the assignee's remedies 
is usually no greater than that of 
his assignor. Sullivan r. Ayer, 174 
Fed. 199 (where the assignee was held 
to be under the same disability as 
his assignor in suing in the federal 
courts). An assignee, however, who is 
entitled to sue in his own name may 
pursue remedies unavailable to his as- 
signor. Hartford Fire Ins. Co. V. Erie 
R. Co., 172 Fed. 899 (assignee of sev- 
eral claims amounting in the aggre- 
gate sufficient to give the court 
jurisdiction); Boyce v. Gordon, 11 Cal. 
App. 771, 106 Pac. 264 (assignee of 
a partnership claim may sue on it 
although the partnership could not). 

12. See infra, I, C. 

13. Covenant To Pay Rent. — Pot- 
ter v. Gronbeck, 117 111. 404, 7 N. E. 
586; Wineman V. iiughson, 44 ID. App. 
22; Van Rensselaer r. Read, 26 N. V. 
558; Willard r. Tillman, 2 Hill (N. Y.) 
274; Demarest f. Willard, 8 Cow. 
(N. Y.) 206. 

If the obligation is negotiable, the 
action must be in the assignee's name. 
Neyfong V. Wells, Hard. (Ky.) 561; 
Mosher r. Allen, 16 Mass. 451. See 
also the title "Bills and Notes." 

14. Assignee of Equitable Chose. — 



vol. in 



90 



ASSIGNMENTS 



must, when enforcing the assigned chose at law, proceed in the 
name of the assignor. 1 ' 



Ala. — Powell 17. Powell, 10 Ala. 900; 
Graham v. Abercrombie, 8 Ala. 552. 
HI. — Olds 17. Cummings, 31 111. 188; 
Dixon v. Buell, 21 111. 203. Ind. — 
Slaughter 17. Foust, 4 Blackf. 379. Me. 
Moor v. Veazie, 32 Me. 343, 52 Am. 
Dec. 655. Mass. — Bigelow v. Willson, 
1 Pick. 485. Mo.--Dobyns 17. McGov- 
ern, 15 Mo. 662. S. C — Hopkins v. 
Hopkins, 4 Strobh. Eq. 207, 53 Am. 
Dec. 663. Vt. — Hagar 17. Buck, 44 Vt. 
285, 8 Am. Rep. 368. 

15. U. S. — Glenn V. Marbury, 14o 
U. S. 499, 12 Sup. Ct. 914, 36 L. ed. 
790; New York Guar. etc. Co. v. Mem- 
phis Water Co., 107 U. S. 205, 2 Sup. 
Ct. 279, 27 L. ed. 484; Tierman v. 
Jackson, 5 Pet. 580, 8 L. ed. 234; Win- 
chester v. Hackley, 2 Cranch 342, 2 L. 
ed. 299; Cummings v. Lynn, 1 Dall. 
444, 1 L. ed. 215; Guthrie 17. White, 1 
Dall. 268, 1 L. ed. 131; Joseph Dixon 
Crucible Co. v. Paul, 167 Fed. 784, 93 C. 
C A. 204; Nederland L. Ins. Co. 17. 
Hall, 84 Fed. 278, 55 U. S. App. 598, 
27 C. C. A. 390; Massachusetts Constr. 
Co v Kidd, 142 Fed. 285. Ala. — Snead 
-V Bell, 142 Ala. 449, 38 So. 259; Mc- 
Nutt v. King, 59 Ala. 597. Ark. — 
Anderson 17. Lewis, 10 Ark. 304; Buek- 
ner v. Greenwood, 6 Ark. 200. Conn. — 
Smith V. Eussoll, 17 Conn. 105; San- 
ford 17. Nichols, 14 Conn. 324; Lyon 
v. Summers, 7 Conn. 399. Del. — Kin- 
niken V. Dulaney, 5 Harr. 384. D. C— 
Karrick 17. Wetmore, 22 App. Cas. 487. 
Ga. — Durant Lumb. Co. 17. Sinclair, 
etc. Lumb. Co., 2 Ga. App. 209, 58 S. 
E 485. 111. — Brownell Imp. Co. v. 
Critchfield, 197 111. 61, 64 N. E. 332; 
City of Carlyle v. Carlyle Water, etc. 
Co., 140 111. 445, 29 N. E. 556; Pot- 
ter 17. Gronbeck, 117 111. 404, 7 N. E. 
586; Wey V. Dooley, 134 111. App. 244; 
Gray V. Bever, 122 111. App. 1; Inde- 
pendent Credit Co. 17. South Chicago 
City R. Co., 121 111. App. 595; Mutual 
L. Ins. Co. 17. Allen, 113 HI. App. 89; 
Congress Const. Co. v. Farson, etc. Co., 
101 Hi. App. 279. la. — McLott 17. 
Savery, 11 Iowa 323; Howey V. Will- 
trout, 10 Iowa 105; Farwell V. Tyler, 
5 Iowa 535. Ky. — Lee 17. Chambers, 
3 J. J. Marsh. 506; Boyd 17. Snelhng, 
7 TB. Mon. 416. La. — Dugue v. 
Levy, 120 La. 369, 45 So. 280. Me.— 



McDonald V. Laughhn, 74 Me. 480; 
Smalley 17. Wight, 44 Me. 442, 96 Am. 
Dec. 112; Pollard 17. Somerset Mut. F. 
Ins. Co., 42 Me. 221. Mass. — Moore 
v. Spiegel, 143 Mass. 413, 9 N. E. 827; 
Rogers 17. Union Stone Co., 134 Mass. 
31; Hunt v. Mann, 132 Mass. 53; Earl 
17. Bickford, 6 Allen 549, 83 Am. Dec. 
651; Foss 17. Nutting, 14 Gray 484; 
Hay v. Green, 12 Cush. 282; Palmer 
v. Merrill, 6 Cush. 282, 52 Am. Dec. 
782; Hart v. Western R. Corp., 13 Met. 
99, 46 Am. Dec. 719; Dyer v. Homer, 
22 Pick. 253; Gibson v. Cooke, 20 Pick. 
15, 32 Am. Dec. 194; Amherst Acad- 
emy v. Cowls, 6 Pick. 42.', 17 Am. Dec. 
387; Ayer 17. Hutchins, 4 Mass. 370, 
3 Am. Dec. 232. Mich. — Lamson 17. 
Marshall, 133 Mich. 250, 95 N. W. 78. 
Miss. — Taylor 17. Reese, 44 Miss. 89; 
Lee v. Gardiner, 26 Miss. 521; Oldham 
v. Ledbetter, 1 How. 43, 26 Am. Dec. 
690. Mo. — Isenhour 17. Barton County, 
190 Mo. 163, 88 S. W. 759. N. H.~ 
Page v. Thompson, 43 N. H. 373; Tib- 
bets v. Gerrish, 25 N. H. 41, 57 Am. 
Dec. 307. N. J. — Sullivan i?. Vis- 
counti, 68 N. J. L. 543, 53 Atl. 
598; Bouvier v. Baltimore, etc. R. 
Co., 67 N. J. L. 281, 51 Atl. 781, 60 
L. R. A. 750; Todd V. Meding, 56 N. 
J. Eq. 83, 38 Atl. 349. N. Y. — On- 
tario Bank V. Mumford, 2 Barb. Ch. 
596; Chase v. Chase, 1 Paige 198; 
Wheeler v. Wheeler, 9 Cow. 34; Thal- 
imer V. Brinkerhoff, 20 Johns. 386; 
Ford v . Stuart, 19 Johns. 342. Ohio. — 
Townsend v. Carpenter, 11 Ohio 21. 
Pa. — Maginn v. Dollar Sav. Bank, 131 
Pa. 362, 18 Atl. 901. K. I. — Clarke 
u. Thompson, 2 R. I. 146. Tenn.— 
Davis, etc. Bldg. Co. V. Caigle, 53 S. 
W. 240; East Tennessee, etc. R. Co. v. 
Henderson, 1 Lea 1; Simpson v. Moul- 
den, 3 Coldw. 429; Mt. Olivet Cem. 
Co. 17. Shubart, 2 Head 116; Hobbs i?. 
Memphis Ins. Co., 1 Sneed 444; Mar- 
ney 17. Byrd, 11 Humph. 95. Vt. — 
Hagar 17. Buck, 44 Vt. 285, 290, 8 Am. 
Rep. 368; Halloran 17. Whitcomb, 43 
Vt. 306. Va. — Tyler 17. Ricamore, 87 
Va. 466, 12 S. E. 799; Garland 17. Rich- 
eson, 4 Rand. 266. W. Va. — Wells- 
burg First Nat. Bank V. Kimberlands, 
16 W. Va. 555. Eng. — Winch v. Keeley, 
1 T. R. 619, 99 Eng. Reprint 1284; 



Vol. in 



ASSIGNMENTS 



91 



a. Objection by Debtor. — Where the assignee sues in the name of 
the assignor, the debtor cannot defend on the ground that the as- 
signor is not beneficially interested in the recovery, 10 inasmuch as 
the action is founded upon the original chose, the legal title to 
which is still in the nominal plaintiff ; nor can he question the valid- 
ity of the assignment, as that is a collateral matter. 17 He may, how- 
ever, take issue on the alleged beneficial interest of the party seek- 
ing to enforce the chose in the assignor's name. 18 

b. Control of Action by Assignee. — The authority of the assignee 
includes the right of entire control of the action, 19 and to the use of 
the assignor's name, 20 even against his objection. 21 

c. Protection of Assignor. — The assignor, however, is entitled to 
indemnity against costs. 22 



Kolt v. White, 31 Beav. 520, 54 Eng. 
Keprint 1240. Can. — Dennison v. Knox, 
24 U. C. Q. B. 119; Ham v. Ham, 6 
U. C. C. P. 37; Walsh v. Hart, 3 Nova 
Scotia 400. 

16. 111. — Chamberlain v. Fernbach, 
118 111. App. 145. Mo. — Labeaume v. 
Sweeney, 17 Mo. 153. N. T. — Raymond 
v. Johnson, 11 Johns. 488; Alsop v. 
Caines, 10 Johns. 396. Pa. — Memphis, 
etc. E. Co. v. Wilcox, 48 Pa. 161; Ham- 
ilton v. Brown, 18 Pa. 87; Armstrong 
v. Lancaster, 5 Watts 68, 30 Am. Dec. 
293. Term. — See Trezevant V. McNeal, 
2 Humph. 352. 

17. Fla. — Sammis v. Wightman, 31 
Fla. 10, 12 So. 526. Ga. — Gilmore v. 
Bangs, 55 Ga. 403. HI. — Chamber- 
lain v. Fernbach, 118 111. App. 145. 
Mass. — Ensign v. Kellogg, 4 Pick. 1. 
N. H. — State v. Boston & M. R. Co., 
58 N. H. 510. Pa. — Hamilton v. 
Brown, 18 Pa. 87; Blanchard v. Com., 
6 Watts 309. 

18. The right of a person claiming 
to be the equitable assignee to use the 
name of the person holding the legal 
title, in a suit on a chose in action, 
may be inquired into, and it may be 
shown that such person is not the 
party beneficially interested. Field v. 
Weir, 28 Miss. 56. See Wilson v. Turk, 
10 Yerg. 247; Cage v. Foster, 5 Yerg. 
261, 26 Am. Dec. 265; Lynn v. Glid- 
well, 8 Yerg. 1, as to the practice in 
Tennessee. But the assignment be 
ing established, the debtor cannot ob- 
ject that the assignee had not procured 
the assignor's consent to use his name. 
Rockwood v. Brown, 1 Gray (Mass.) 
261. See further infra, III, C, 3. 

19. U. S. — Mandeville v. Welch, 5 



Wheat. 277, 5 L. ed. 87; Welch v. Man- 
deville, 1 Wheat. 233, 4 L. ed. 79. Ky. 
Marr v. Hanna, 7 J. J. Marsh. 642, 23 
Am. Dec. 449. Me. — Southwick v. Hop- 
kins, 47 Me. 362. Miss. — Anderson v. 
Miller, 7 Smed. & M. 586. N. H. — Gor- 
don V. Drury, 20 N. H. 353. N. C — 
Deaver v. Eller, 42 N. C. 24; Arrington 
V. Arrington, 2 N. C. 1. Term. — Wright 
v. McLemore, 10 Yerg. 234. Tex. — 
McFadin v. MacGraal, 25 Tex. 73. Vt. 
Halloran v. Whitcomb, 43 Vt. 306. 

20. See eases cited under I, A, 2, 
supra. 

Compelling Assignor's Consent. — 
Anderson v. Miller, 7 Smed. & M. 
(Miss.) 586. See, however, Ward t?. 
Audland, 8 Beav. 201, 50 Eng. Re- 
print 79. 

21. U. S. — Massachusetts Oonstr. 
Co. v. Kidd, 142 Fed. 285. Ark.— Clark 
v. Moss, 11 Ark. 736. D. C. — Kar- 
rick v. Wetmore, 22 App. Cas. 487. 
Mass. — Walker v. Brooks, 125 Mass. 
247; Foss v. Lowell Five Cents Sav. 
Bank, 111 Mass. 285; Riley v. Taber, 
9 Gray 372; Bates v. Kempton, 7 Gray 
382; Rockwood v. Brown, 1 Gray 261; 
Dennis v. Twitchell, 10 Met. 180; 
Grover v. Grover, 24 Pick. 261, 35 Am. 
Dec. 319; Dyer v. Homer, 22 Pick. 253; 
Jones v. Witter, 13 Mass. 304. Tex.— 
McFadin v. MacGreal, 25 Tex. 73. But 
see Allen v. Pannell, 51 Tex. 165. Va. 
But see Moseley v. Boush, 4 Rand. 392 
(right of assignee not unlimited). 
Eng. — Portarlington v. Graham, 5 Sim. 
416, 58 Eng. Reprint 393. But see 
Chambers v. Donaldson, 9 East 471, 103 
Eng. Reprint 653; Spicer v. Todd, 2 
Tyrw. 172, 1 L. J. Exch. 59. 

22. m. — Dazey v. Mills, 10 111. 67; 

vol. in 



92 



ASSIGNMENTS 



d. When Assignor Dies. — The death of the assignor does not 
destroy the assignee's rights. He may use the name of the assignor's 
personal representative, 23 irrespective of the latter 's consent. 24 

e. When Assignor Becomes Bankrupt. — The right of the assignee 
to sue in the assignor's name is not affected by the latter 's bank- 
ruptcy occurring after the assignment. 25 

3. Actions in Name of Assignee. — a. The Bute. — In the absence 
of statutory authority 26 an assignee of a non-assignable chose can- 
not sue thereon at law in his own name. 27 



Henderson V. Welch, 8 111. 340; Chap- 
man v. Shattuck, 8 111. 49; Creighton V. 
Hyde Park, 6 111. App. 272. Me. — 
Laws, 1874, c. 235; Wood v. Decoster, 
66 Me. 542. Mass. — Walker v. Brooks, 
125 Mass. 247; Foss v. Lowell Five 
Cents Savings Bank, 11" Mass. 285; 
Bates V. Kempton, 7 Gray 382; Bock- 
wood v. Brown, 1 Gray 261; Dennis 
v. Twitchell, 10 Met. 180. Miss. — 
Anderson V. Miller, 7 Smed. & M. 586. 
N. H. — Gordon v. Drury, 20 N. H. 
353; Farnsworth v. Sweet, 5 N. H. 267. 
Pa- — See Canby V. Bidgway, 1 Binn. 
496. Tex. — Allen v. Pannell, 51 Tex. 
165. Eng. — Turquand V. Fearon, L. B. 
4 Q. B. D. 280. 

In Larriman v. Hill, 14 Me. 127, it 
' is said that care will be taken that 
the assignor is not prejudiced by the 
use of his name. 

Liability for Abuse of Process. — It 
was held in Brown v. Feeter, 7 Wend. 
(N. Y.) 301, that the assignor was 
liable for any abuse of process in an 
action in his name. But see, contra, 
Park v. Toledo, etc. K. Co., 41 Mich. 
352, 1 N. W. 1032. 

23. U. S. — Suvdam v. Ewing, 2 
Blatchf. 359, 23 Fed. Cas. No. 13,655. 
111. — Orr V. Ihompson, 9 111. 451; 
Phillips 17. Wilson, 25 111. App. 427. 
Mas::. — Foss v. Lowell Five Cents 
Sav. Bank, 111 Mass. 285; Cutts v. 
Perkins, 12 Mass. L06; Dawes v. Boyls- 
ton, 9 Mass. 337, 6 Am. Dec. 72. Tenn. 
Smiley V. Bell, Mart. & Y. 378, 17 
Am. Dec. 813. 

24. Legatee of debt may sue in 
name of executor of will, if the ex- 
ecutor does not- object. Grover V. 
Grover, 24 Pick. (Mass.) 261, 35 Am. 
Dec. 319; Haves r. Hayes, 45 N. J. 
Eq. 461, 17 Atl. 634. 

Though the statute authorizes the 
assignee to sue in his own name, still 
he may sue in name of the assignor's 



personal representative. Phillips v. 
Wilson, 25 HI. App. 427. 

Where the assignor dies before ac- 
tion is commenced in his name, a stat- 
ute, providing that a suit brought by 
one person for his own use in the name 
of another shall not abate on the death 
of the nominal party, does not au- 
thorize an assignee to institute an ac- 
tion in the name of the deceased as- 
signor. Jenks v. Edwards, 6 Ala. 143; 
Karrick v. Wetmore, 22 App. Cas. 
(D. C.) 487. But in Lewis V. Austin, 
144 Mass. 383, 11 N. E. 538, and in 
Denton v. Stephens, 32 Miss. 194, the 
action was begun in the name of the 
deceased assignor and an amendment 
was permitted substituting the personal 
representative. Compare Humphreys v. 
Irvine, 6 Smed. ": M. ,Miss.) 205. 

25. Me. — Sawtelle V. Rollins 23 
Me. 196. Mass. — Reed v. Paul, 131 
Mass. 129. Miss. — Defrance V. Davis, 
Walk. 69. N. H. — Hayes V. Pike, 17 
N. H. 534. 

See also Congress Constr. Co. v. Far- 
son, 199 111. 398, 65 N. E. 357; Smalley 
v. Taylor, 33 Tex. 668. But see Benoist 
v. Darby, 12 Mo. 196. 

26. See infra, I, C. As to choses 
assignable at law, see the title "Bills 
and Notes." 

27. Ala. — Bohanan V. Thomas, 159 
Ala. 410, 49 So. 308; Brown r. Cham- 
bers, 12 Ala. 697; Bunnell V. Masree, 9 
Ala. 433; Black v. Everett. 5 Stew. & 
P. 60. Fla. — Sammis v. Wightman, 
31 Fla. 10, 12 So. 526; Kendig v. Giles, 
9 Fla. 278; Hooker v. Gallagher, 6 Fla. 
351. 111. — Merchants Ins. Co. V. Union 
Ins. Co., 162 111. 173, 44 N. E. 409; 
Hughes i". Trahern, 64 111. 48; Peoria 
Scrap Iron Co. V. Cohen, 113 111. App. 
30. Ind. — Beid v. Ross, 15 Ind. 265; 
Moore V. Ireland, 1 Ind. 531; Rich- 
ardville V. Cummins, 5 Blackf. 48. Ky. 
Elliott V. Wanng, 5 T. B. Mon. 338, 



vol. in 



ASSIGNMENTS 



93 



b Apparent Exception. — Promise by Debtor. — If either before 
or after the assignment 28 the debtor assents thereto and promises 88 
to pay the assignee, then the assignor may bring an action in his 
own name, apparently on the new promise, 30 although the cases do 



17 Am. Dec. 69. Me. — Myers v. York, 
etc. R. Co., 43 Me. 232. Mass.— Baker 
r. Seavey, 162 Mass. 522, 40 N. E. 863, 
47 Am. St. Rep. 475; Bridgham V 
Tileston, 5 Allen 371; Riley v. Taber, 
9 Gray 372; Skinner v. Somes, 14 Mass. 
107. N. J. — Ri'Vardson r. Beaumont, 
20 N. J. L. 57«; Sharp V. Moore, 3 
N. J. L. 413; Mulford r. French, 3 
N. J. L. 54; Smock V. T-ylor, 1 N. J. 
L. 177. S. C — Smith f. Cook, 2 Mc- 
Mull. 58. See Matheson v. Crain, 1 
McCord 219. ".Vis. — Rockwell v. Dan- 
iels, 4 Wis. 432. 

28. U. S. — Tiernan r. Jackson, 5 
Pet. 580, 8 L. ed. 234. Me. — Lang 
v. Fiske, 11 Me. 385. N. H. — Morse 
V. Bellows, 7 N. H. 549, 28 Am. Dec. 
372. 

29. Debtor's Promise Essential. — 
U. S. — Tiernan r. Jackson, 5 Pet. 580, 
8 L. ed. 234. Fla. — Sammis v. Wight- 
man, 31 Fla. 10, 12 So. 526; Kendig 
v. Giles, 9 Fla. 278. 111. — City of 
Carlyle v. Carlyle Water, etc. Co., 140 
111. 445, 29 N. E. 556; Gray v. Bever, 
122 111. App. 1. Me. — Vose C. Treat, 
58 Me. 378; Page v. Danforth, 53 Me. 
174; Farnum v. Virgin, 52 Me. 576; 
Myers V. York, etc. R. Co., 43 Me. 232; 
Ballard v. Greenbush, 24 Me. 336; War- 
ren v. Wheeler, 21 Me. 484. Md. — 
Barger r. Collins, 7 liar. & J. 213; 
Allstan's Exr. v. Constee's Exr., 4 
Har. & J. 351. Mass. — Leach v. 
Greene, 116 Mass. 534; Foss v. Lowell 
Five Cents Sav. Bank, 11 Mass. 285; 
Foss v. Nutting, 14 Gray 484; Hay V. 
Green, 12 Cush. 282; Derby V. San- 
ford, 9 Cush. 263; Parkhurst v. Dick- 
erson, 21 Pick. 307; Andover, etc. Turn- 
pike Corp. v. Gould, 6 Mass. 42, 4 
Am. Dec. 80. Minn. — Dean v. St. Paul 
& D. R. Co., 53 Minn. 504, 55 N. W. 
628. Mo.— Walker r. Mauro, 18 Mo. 
564. N. H. — Boyd v. Webster, 58 N. 
H. 336; Pierce v. Nashua Fire Ins. Co., 
50 N. H. 297, 9 Am. Rep. 235; Barnes 
v. Union Mut. Fire Ins. Co., 45 N. II. 
21; Shepherd r Tnion Mut. Fire Ins. 
Co., 38 N. II. 232; Thompson r. Emery, 27 
N. II. 269; Tibbets r. (ierrisli, B5 N. II. 
41, 57 Am. Dec. 307. N. J. — Flana- 
gan p. Camden Mut. Ins. Co., 25 N. 



J. L. 506. N. Y. — Jessel V. Williams- 
burg Ins. Co., 3 Hill 88; Dubois v. 
Doubleday, 9 Wend. 317; Weston V. 
Barker, 12 Johns. 276, 7 Am. Dec. 319; 
Hudson v. Reeve, 1 Barb. 89. Pa. — 
De Barry v. Withers, 44 Pa. 356; Hor- 
bach f. Huey, 4 Watts 455, 39 Am. Dec. 
99. R. I. — Clarke v. Thompson, 2 R. 
I. 146. Term. — Smith v. Cottrel, 8 
Baxt. 62; Flickey V. Loney, 4 Baxt. 
169; Mt. Olivet Cem. Co. V. Shubert, 
2 Head 116. Tex. — Ross v. Smith. 
19 Tex. 171, 70 Am. Dec. 327; Rollison 
v. Hope, 18 Tex. 446; Texas & Pac. 
R. Co. r. Wright, 2 Wills. Civ. 
Cas., § 339. Vt. — Simonds v. Pierce, 
51 Vt. 467; Allis V. Jewell, 36 Vt. 547; 
Wood v. Rutland, etc. Mut. F. Ins. 
Co., 31 Vt. 552. W. Va. — Bentlev r. 
Standard F. Ins. Co., 40 W. Va. *729, 
23 S. E. 584. Eng.— Innes v. Dunlop, 
8 T. R. 595, 101 Eng. Reprint 1565; 
Fenner v. Meares, 2 W. Bl. 1269, 96 
Eng. Reprint 746; Jones v. Farrell, 1 
De G. & J. 208, 215, 44 Eng. Reprint 
703; Ex parte South, 3 Swanst. 392, 36 
Eng. Reprint 907; Tsrael V. Douglas, 
1 H. Bl. 239; Fairlie r. Denton, 8 

B. & C. 395, 15 E. C. L. 246; Wilson 
V. Coupland, 5 B. & Aid. 228, 7 E. 

C. L. 77. 

30. Recovery on Debtor's Promise. 
U. S. — Tiernan r. Jackson, 5 Pet. 5S0, 
8 L. ed. 234; Nederland L. Ins. Co. V. 
Hall, 84 Fed. 278, 55 U. S. App. 598, 
27 C. C. A. 390; Burke's Case, 13 Ct. 
CI. 231. HI. — City of Carlvle V. Car- 
lyle, etc. Water Co., 140 111. 445, 29 
N. E. 556; Townsend V. Gregorv, L32 
111. App. 192; Gray r. Bever, 122 111. 
App. 1. Me. — Warren r. Wheeler, 21 
Me. 484; Smith v. Berrv, 18 Me. 122; 
Lang V. Fiske, 11 Me. 385. Md. — Gor- 
don v. Downev, 1 Gill 41; Barger r. 
Collins, 7 liar. & .1. 213; Allstan V. 
Contee, 4 Har. & J. 351. Mass. — Bur- 
rows v. Glover, 106 Mass. 324; Derby 
v. Sanford, 9 Cush. 263; Bourne r. 
Cabot. 3 Met. 305. See also Wilson 
v. Hill. 3 Met. 66j Coolidge P. Rug- 
gles, 15 Mass. 387. N. H. — Morse r. 
Bellows, 7 N. II. 549, 20 Am. Dec. 
372; Wiggin v. Damrell, 4 N. H. 69; 
Currier v. Hodgdon, 3 N. H. 82. See 

vol. m 



94 



ASSIGNMENTS 



not always discriminate as to the basis of the assignee's action* 1 
Sufficiency of Promise. — By some cases it is held that the promise 

must be express ; 32 by others that it may be implied. 33 
consideration. — By the weight of authority no new consideration 

is necessary to support the promise. 34 



also Thompson v. Emery, 27 N. H. 269. 
N. J. — Flanagan v. Camden Mut. 
Ins. Co., 25 N. J. L. 506. N. Y.— 
Compton v. Jones, 4 Cow. 13; Weston 
v. Barker, 12 Johns. 276, 7 Am. Dee. 
319; Ford v. Adams, 2 Barb. 349. Pa. 
DeBarry v. Withers, 44 Pa. 356. R. I. 
Clarke v. Thompson, 2 R. I. 146. Tenn. 
Mt. Olivet Cem. Co. v. Shubert, 2 Head 
116> vt. — Allis v. Jewell, 36 Vt. 547; 
Wood v. Eutland Mut. F. Ins. Co., 31 
Vt. 552; Hodges v. Eastman, 12 Vt. 
358. W. Va.— Wilt v. Huffman, 46 
W. Va. 473, 33 S. E. 279; Bentley v. 
Standard F. Ins. Co., 40 W. Va. 729, 
23 S. E. 584. Eng. — Innes v. Dunlop, 
8 T. R. 595, 101 Eng. Reprint 1565; 
Clarke v. Adair, cited in Master v. 
Miller, 4 T. R. 320, 343, 100 Eng. Re- 
print 1042; Fenner v. Meares, 2 W. 
Bl. 1269, 96 Eng. Reprint 746; Surtees 
v. Hubbard, 4 "sp. 203; Israel v. Doug- 
las, 1 H. Bl. 239: Crowfoot v. 
Gurne. , 9 Bing. 372, 23 E. C. L. 309; 
Hodgson v. Anderson, 3 B. & C. 842, 
10 E. C. L. 247. 

Recognition and Sufficiency of As- 
sent. — U. S. — Winchester v. Hackley, 
2 Cranch 342, z L. ed. 299. Mo. — 
St. Louis V. Clemens, 42 Mo. 69. 
W. Va. — Bentley v. Standard F. Ins. 
Co., 40 W. Va. 729, 23 S. E. 584. 

See also: Ta. — White v. Chicago & 
N. W. R. Co., 124 N. W. 309. Mo.— 
St. Louis v. Ruclolph, 36 Mo. 465. Eng. 
Surtees v. Hubbard, 4 Esp. 203. 

31. Assignee's Option. — Where the 
maker of a non-negotiable instrument 
has specially promised to pay the as- 
signee, the latter can either sue in 
his own name on the special promise 
or in the name of the payee on the 
note, but cannot sue in his own name 
on the note. Hatch v. Spearin, 11 Me. 
354. See also Weston v. Penniman, 
1 Mason 306, 29 Fed. Cas. No. 17,455; 
Kingsley v. New England Mut. F. Ins. 
Co., 8 Cush. (Mass.) 393; Clark v. Par- 
ker, 4 Cush. (Mass.) 361. 

32. Me. — Cole V. Bodfish, 17 Me. 
310; Hatch v. Spearin, 11 Me, 354. 
Mass. — Parkhurst V. Dickerson, 21 



Pick. 307. N. Y. — Jessel v. Williams- 
burgh Ins. Co., 3 Hill 88 (holding a 
mere consent to assignment not suffi- 
cient); McCoon v. Biggs, 2 Hill 121 
(promise by one of joint makers); 
Dubois v. Doubleday, 9 Wend. 317. 
Tenn. — Mt. Olivet Cem. Co. v. Shu- 
bert, 2 Head 116, promise by agent. 

33. HI. — Carlyle v. Carlyle Water, 
etc. Co., 140 111. 445, 29 N. E. 556; 
Townsend v. Gregory, 132 HI. App. 192. 
Md. — Stewart v. Rogers, 19 Md. 98; 
Barger v. Collins, 7 Har. & J. 213. 
Mich. — Robinson v. Watson, 101 Mich. 
466, 59 N. W. 811. N. Y. — Sears v. 
Patrick, 23 Wend. 528. N. C — Nim- 
ocks v. Woody, 97 N. C. 1, 2 S. E. 
249, 2 Am. St. Rep. 268. 

Promise Need Not Be in Writing. — 
Rollison v. Hope, 18 Tex. 446; Wilt 
v. Huffman, 46 W. Va. 473, 33 S. E. 
279. 

34. Me. — Warren v. Wheeler, 21 Me. 
484; Smith v. Berry, 18 Me. 122. Mass. 
Buttrick Lumb. Co. v. Collins, 202 
Mass. 413, 89 N. E. 138; Derby v. San- 
ford, 9 Cush. 263; Crocker v. Whitney, 
10 Mass. 319. See also Skinner v. 
Somes, 14 Mass. 107. N. H. — Pierce 
v. Nashua Fire Ins. Co., 50 N. H. 297, 
9 Am. Rep. 235; Edson v. Fuller, 22 
N. H. 183; Morse v. Bellows, 7 N. H. 
549, 28 Am. Dec. 372; Currier v. Hodg- 
don, 3 N. H. 82. Pa. — DeBarry v. 
Withers, 44 Pa. 356. R. I. — Clark v. 
Thompson, 2 R. I. 146. Vt. — Stiles 
V. Farrar, 18 Vt. 444; Bucklin V. Ward, 
7 Vt. 195; Moar V. Wright, 1 Vt. 57. 
See also Phalan v. Stiles, 11 Vt. 82. 
W. Va. — Bentley V. Standard Fire Ins. 
Co., 40 W. Va. 729, 23 S. E. 584. Eng. 
Innes V. Dunlop, 8 T. R. 595, 101 Eng. 
Reprint 1565. 

Contra, Kendrick V. Glover, Ga. Dec. 
(pt. 1) 63; McKinney V. Alvis, 14 111. 
33. See also Wharton v. Walker, 4 B. 
& C. 163, 10 E. C. L. 302; 1 Chit. PI. 
18, 96 Eng Reprint 746; Oble V. Dit- 
tlesfield, 1 Vent. 153, 86 Eng. Reprint 
105; Forth v. Stanton, 1 Saund. 210, 
85 Eng. Reprint 217; Fenner V. Meares, 
2 W. Bl. 1269. 



vol. m 



ASSIGNMENTS 



95 



B. In Equity. — 1. In General. — Since courts of law recognize 
the rights of an assignee by permitting him to sue in the name of 
the assignor on the assigned chose, 35 resort to equity can be had 
only where the assignor can show there is no remedy or an inade- 
quate remedy at law ; as, for example, where the assigned chose is 
equitable in its nature and cognizable only by a court of equity; 88 
or where the remedy at law on a chose, legal in its nature, is inade- 
quate. 37 It has been held, however, in some jurisdictions, that an 
assignee having an equitable title to a legal chose may enforce it 
in equity notwithstanding he has also a legal remedy in the name 
of his assignor. 33 But by the weight of authority he cannot, except 
as just noted, come into equity relying upon his equitable rights 
until he is unable to enforce at law the legal rights of his assignor. 3 " 



35. Steele v. Frierson, 85 Tenn. 430, 

3 S. W. 649; Shenandoah Val. E. Co. 
v. Miller, 80 Va. 821, 833. See also 
infra, I, B, 2; supra, I, A, 2. 

36. Equitable Chose Enforceable in 
Assignee's Name. — U. S. — Bradford 
v. Williams, 4 How. 576, 11 L. ed. 
1109; Lenox v. Koberts, 2 Wheat. 373, 

4 L. ed. 264; Riddle v. Mandeville, 5 
Cranch 322, 3 L. ed. 114; O'Shaugh- 
nessy v. Humes, 129 Fed. 953. Ala. — 
Moorer v. Moorer, 87 Ala. 545, 6 So. 
289; Plowman v. Riddle, 14 Ala. 169, 
48 Am. Dec. 92; Powell v. Powell, 
10 Ala. 900; Graham v. Abercrombie, 8 
Ala. 552. Ark. — Caldwell V. Meshew, 
44 Ark. 564. D. C — Young v. Kelly, 

3 App. Cas. 296. Fla. — Sammis v. 
Wightman, 31 Fla. 10, 12 So. 526. 111. 
Gleason, etc. Mfg. Co. v. Hoffman, 168 
111. 25, 48 N. E. 143; Smith V. Brit- 
tenham, 109 111. 540; Olds v. Cum- 
miDgs, 31 111. 188; Dixon v. Buell, 21 
HI. 203; Frye v. State Bank, 10 
111. 332. Ind. — Slaughter v. Foust, 

4 Blackf. 379. Ky. — Blackerby v. 
Holton, 5 Dina 522. Me. — Moor v. 
Veazie, 32 Me. 343, 52 Am. Dec. 655; 
Haskell v. Hilton, 30 Me. 419; Moore 
P. Griffin, 22 Me. 355. Md. — Coale 
v. Mildred's Admr., 3 Har. & J. 278. 
Mass. — Murphy v. Marland, 8 Cush. 
575; Ensign v. Kellogg, 4 Pick. 1; Bige- 
low v. Willson, 1 Pick. 485. Mo. — 
Dobyns v. McGovern, 15 Mo. 662. 
N. Y. — Hooker v. Eagle Bank, 30 
N. Y 83, 86 Am. Dec. 351; Sedgwick 
v. Cleveland, 7 Paige 287; Gleason v. 
Gage. 7 Paige 121; Rogers v. Traders' 
Infs Co., 6 Paige 583; Field v. Maghee, 

5 Paige 539. Ohio. — Townsend r. Car- 
pevier, 11 Ohio 21. Pa. — Trexler v. 
Kv»tz, 36 Pa. Super. 352. S. O. — Hop- 



kins v. Hopkins, 4 Strobh. Eq. 207, 53 
Am. Dec. 663. Tenn. — Kramer v. Wood, 
52 S. W. 1113; Steele v. Frierson, 85 
Tenn. 430, 3 S. W. .649. Tex. — Heard v. 
Lockett, 20 Tex. 162; Ross v. Smith, 
19 Tex. 171, 70 Am. Dec. 327. Vt.— 
Hagar v. Buck, 44 Vt. 285, 8 Am. Rep. 
368. Va. — Shenandoah Val. R. Co. 
v. Miller, 80 Va. 821, 833. Wis.— Var- 
ney v. Bartlett, 5 Wis. 276. 

37. U. S. — Bradford V. Williams, 4 
How. 576, 11 L. ed. 1109; Lenox v. 
Roberts, 2 Wheat. 373, 4 L. ed. 264; 
Riddle v. Mandeville, 5 Cranch 322, 3 
L. ed. 114; Pendleton v. Wambersie, 
4 Cranch 73, 2 L. ed. 554. D. C — 
Glenn v. Sothoron, 4 App. Cas. 125. 
Ky. — Gatewood v. Lyle, 5 T. B. Mon. 
6; Cobb v. Thompson, 1 A. K. Marsh. 
507; Beauchamp v. Davis, 3 Bibb 
111. Mass. — Hobart v. Andrews, 21 
Pick. 526. Miss. — Pearson v. Barlow, 
35 Miss. 174, 72 Am. Dec. 121. Pa.— 
Watson v. McManus, 224 Pa. 430, 73 
Atl. 931. Tex. — Bullion v. Campbell, 
27 Tex. 653. 

38. Miss. — Taylor v. Reese, 44 Miss. 
93. Mo. — Dobyns v. McGovern, 15 Mo. 
662. Ohio. — Townsend v. Carpenter, 11 
Ohio 21. V"..— Winn V. Bowles, 6 
Munf. 23. W. Va. — Dudley v. Barrett, 
66 W. Va. 363, 66 S. E. 507. 

39. U. S. — Glenn v. Marbury, 145 
U. S. 499, 12 Sup. Ct. 914, 36 L. ed. 
790; New York Guar. Co. v. Memphis 
Water Co., 107 U. S. 205, 2 Sup. 
Ct. 279, 27 L. ed. 484; Hayward V. 
Andrews, 106 U. S. 672, 1 Sup. Ct. 
544, 27 L. ed. 271; Root v. Lake Shore, 
etc. R. Co., 105 U. S. 189, 26 L. ed. 
975; Lenox v. Roberts, 2 Wheat. 373, 
4 L. ed. 264; Riddle t;. Mandeville, 5 
Cranch 322, 3 L. ed. 114; Union Tr. 

vol. m 



96 



ASSIGNMENTS 



So long as his remedies at law are adequate, equity will not enter- 
tain his suit to enforce a legal right. 40 

2. Suit in Assignee's Name. — When the assigned 
able in its nature and cognizable only in equity, the 
proceed in his own name, 41 and it is held by some 
should not sue in the name of the assignor. 42 

C. Statutory Modifications. — 1. In General. — 
statutory changes 43 in many states the rights of assi£ 
modified, and where these changes exist the assignee 
pursue his remedies in the name of the assignor. 44 



chose is equit- 

assignee should 

courts that he 

As a result of 
jnees have been 
need no longer 



Co. v. Bulkeley, 150 Fed. 510, 80 C. C. 
A. 328; Eau Claire v. Payson, 107 Fed. 
552, 46 C. C. A. 466. Ala. — McGehee 
r. Dougherty, 10 Ala. 863. D. C. — 
Glenn v. Sothoron, 4 App. Cas. 125. 
111. — Chicago & N. W. R. Co v. Nich- 
ols, 57 111. 464; Hillis v. Asay, 105 
111. App. 667. Md. — Adair v. Winches- 
ter, 7 Gill & J. 114; Gover v. Christie, 
2 Har. & J. 67. Mass. — Walker v. 
Brooks, 125 Mass. 241. N J. — Hayes 
V. Hayes, 45 N. J. Eq. 461, 17 Atl. 
634: N. Y. — Ontario Bank v. Mum- 
ford, 2 Barb. Ch. 596; Rogers V. 
Traders' Ins. Co., 6 Paige 583; Field 
v. Maghee, 5 Paige 539. Tenn.— 
Smiley v. Bell, Mart. & Y. 378, 17 Am. 
'Dec. 813. Vt. — Hagar V. Buck, 44 Vt. 
285, 8 Am. Rep. 368. Va. — Moseley 
V. Boush, 4 Rand. 392. Eng. — Rose 
v. Clarke, 1 Y. & C. Ch. 534, 62 Eng. 
Reprint 1005; Hammond v. Messen- 
ger, 9 Sim. 327, 7 L. J. Ch. 310, 2 
Jur. 655, 59 Eng. Reprint 383; Cator 
r. Burke, 1 Bro. C. C. 434, 28 Eng. 
Reprint 1222; Motteux V. London 
Assur. Co., 1 Atk. 545, 26 Eng. Re- 
print 343; Dhegetoft V. London Assur. 
Co., Moseley 83, 25 Eng. Reprint 285; 
Rolt V. White, 9 Jur. N. S. 343, 7 
L. T. N. S. 345. Can. — Ross v. Munro, 
6 Grant Ch. 431. 

40. U. S. — New York Guaranty Co. 
V. Memphis Water Co., 107 U. S. 
205, 2 Sup. Ct. 279, 27 L. ed. 484; 
Hayward V. Andrews, 106 U. S. 672, 
1 Sup. Ct. 144 27 L. ed. 271; Root 
r. Lake Shore, etc. R. Co.. 105 U. S. 
189, 26 L. ed. 975; Fan Claire V. Pay- 
son, 107 Fed. 552, 46 O. C. A. 466; 
Burke's Case, 13 Ct. CI. 231. D. C. — 
Glenn V. Sot h iron, 4 App. Cas. 125. 
Ind. — Jones r. Burtch, 5 Blackf. 372. 
Ky. — Contra, Cobb v. Thompson, 1 A. 
K. Marsh. 507. Md. — Adair v. Win- 
chester, 7 Gill & J. 114; Gover V. Chris- 
tie, 2 Har. & J. 67. Mass. — Angell 

vol. in 



v. Stone, 110 Mass. 54. N. Y. — On- 
tario Bank v. Mumford, 2 Barb. Ch. 
596; Carter -. United Ins. Co., 1 
Johns. Ch. 463. Ohio. — New York, etc. 
Co. v. Herrmann, 27 Ohio C. C. 694. 
Tenn. — Smiley v. Bell, Mart. & Y. 378, 
17 Am. Dec. 813. Va. — Moseley v. 
Boush, 4 Rand. 392; Taylor V. Ficklin, 5 
Munf . 25. Eng. — Hammond v. Messen- 
ger, 9 Sim. 327, 59 Eng. Reprint 383; 
Rolt V. White, 31 Beav. 520, 54 Eng. Re- 
print 1240; Dhegetoft V. London Assur. 
Co., Moseley 83, 25 Eng. Reprint 285; 
Keys v. Williams, 6 Y. & C. Exch. 462, 
3 Jur. 950; Hammond V. Wilkes, 2 Jur. 
655. But see Jon-3S v. * arrell, 1 De G. 
& J. 208, 44 Eng. Reprint 703. 

41. See cases cited supra, I, B, 2. 

42. Ala. — Plowman V. Riddle, 14 
Ala. 169, 48 Am. Dec. 92. Fla. — Sam- 
mis v. Wightnan, 31 Fla. 45, 12 So. 
536. 111. — Elder V. Jones, 85 111. 384; 
Frye v. State Bank, 10 111. 332. Me.— 
Haskell v. Hilton, 30 Me. 419. N. Y.— 
Gleason V. Gage, 7 Paige 121; Rogers 
v. Traders' Ins. Co., 6 Paige 583; Field 
v. Maghee, 5 Paige 539. Wis. — Varney 
v. Bartlett, 5 Wis. 276. 

43. Baumert v. Daeschler, 120 N. Y. 
Supp. 957; Smith v. Cook, 2 McMulI. 
(S. C.) 58. 

44. Action in Assignor's Name No 
Longer Necessary. — U. S. — Delaware 
County v. Diebold Safe Co., 133 U. S. 
473, 10 Sup. Ct. 399, 33 L. ed. 674 
(referring to statute in Indiana); Har- 
per v. Butler, 2 Pet. 239, 7 L. ed. 410 
(referring to statute in Mississippi) ; 
American Bond & T. Co. V. Baltimore, 
etc. R. Co., 124 Fed. 866, 60 C. 
C. A. 52; Cronin V. Patrick County, 
89 Fea. 79; Morrison ' v. North Amer- 
ica Transp., etc. Co., 85 Fed. 802,- 
Edmunds V. Illinois Cent. R. Co., 80 
Fed. 78; Glenn V. Scott, 26 Fed. 804. 
Ark. — Collier V. Trice, 79 Ark. 414, 
96 S. W. 174; Lanigan V. North, 6-r 



ASSIGNMENTS 



97 



Ark. 62, 63 S. W. 62; Worthington 
V. Curd, 15 Ark. 491; Owen V. Lavine, 
14 Ark. 389. Cal. — Heisen v. Smith, 
138 Cal. 216, 71 Pac. 18'j, 94 Am. St 
Rep. 39; Quan Wye V. Ohin Lin ITee, 123 
Cal. 185, 55 Pac. 783; Engham v. Weed, 48 
Pac. 318; Mori V. Massini, 32 Cal. 590; 
Lazard v. Wheeler, 22 Cal. 139; Gray 
v. Garrison, 9 Cal. 325; Ryan r. Mad- 
dux, 6 Cal. 247. Colo. — RambO V. Arm- 
strong, 45 Colo. 124, 100 Pac. 586; 
Good v. Lipp, 41 Colo. 209, 91 Pac. 
1104; Doyle V. Nesting, 37 Colo. 522, 
88 Pac. 862; Forsyth r. Rvan, 17 Colo. 
A | T . 511, 68 Pac. 1055. Del. — Herd- 
man V. Morris, 2 Ilarr. 509. D. C. — 
Sincell V. Davis, 24 App. Cas. 218. Fla. 
Ritch V. Eichelbergcr, 13 Fla. 1G9. 111. 
Congress Constr. Co. v. Farson & Libby 
Co., 199 111. 398, 65 N. E. 357, affirm- 
ing 101 111. App. 279; Wabash, etc. R. 
Co. v. Oetting, 147 111. App. 179. Ind. 
Strong v. Clem, 12 Ind. 37, 74 Am. 
Dec. 200; Hancock v. Ritchie, 11 Ind. 
48. la. — Abell Note Brokerage & 
Bond Co. r. Ilurd, 85 Iowa 559, 52 N. 
W. 488; Charles v. Haskins, 11 Iowa 
329, 77 Am. Dec. 148; Merchants & 
Mechanics' Bank V. Hewitt, 3 Iowa 93, 
66 Am. Dec. 49. Kan. — Stewart v. 
Price, 64 Kan. 191, 67 Pac. 553, 64 L. 
R. A. 581; Krapp V. Eldridge, 33 Kan. 
106, 5 Pac. 372. Ky. — Murray v. 
Duffy, 23 Ky. L. Rep. 2194, 66 S. W. 
1038. Me. — Coombs v. Harford, 99 
Me. 426, 59 Atl. 529; National Exch. 
Bank v. McLoon, 73 Me. 498, 40 Am. 
Rep. 388. M d . — Schaf'erman v. 
O'Brien, 28 Md. 565, 92 Am. Dec. 708. 
Mass. — Oilman V. American Producers 
C. Co., 180 Mass. 319, 62 N. E. 267; 
Wiley r. Connelly, 179 Mass. 360, 60 
N. E. 784. Mich. — Midland County 
Sav. Bank V. Frouty Co., 158, Mich. 
656, 123 N. W. 549, 133 Am. St. Rep. 
401; Ebel V. Piehl, 134 Mich. 64, 95 
N. W. 1004; Toledo, etc. R. Co. V. John- 
son, 55 Mich. 456, 21 N. W. 888; Felt 
v. Reynolds Rotarv Fruit Evap. Co., 52 
Mich. 602, 18 N. W. 378; Watson V. 
Watson, 49 Mich. 540, 14 N. W. 489. 
Minn. — Hurley v. Bendel, 67 Minn. 41, 
69 N. W. 477; Tuttle v. Howe, 14 
Minn. 145, 100 Am. Dec. 205. Miss. — 
Wright V. Hardy, 76 Miss. 524, 24 So. 
697. Mo. — Guerney r. Moore, 131 Mo. 
650, 32 S. W. 1132; Snyder v. Wabash, 
etc. R. Co., 86 Mo. 623, 29 Am. & Eng. R. 
Cas. 237; Long V. Heb rich, 46 Mo. 603; 
Long v. Constant, 19 Mo. 320, 61 Am. 



Dec. 559; Williams v. Whitlock, 14 Mo. 
552; Webb V. Morgan, 14 Mo. 
Price v. Clevenger, 99 Mo. App 
74 S. W. 894. Neb. — Buddleson v. 
Polk, 70 Neb. 483, 97 N. W. 624; Crum 
i'. Stanley, 55 Neb. 351, 75 N. W. 851; 
Mills v. Slurry, 1 Neb. 327; Hixon Map 
Co. r. Nebraska Post Co., 5 Neb. 
(Unof.) 388, 98 N. W. 872. Nev. — Car- 
penter v. Johnson, 1 Nev. 331. N. J. — 
Sullivan v. Visconti, 68 N. J. L. 543, 
53 Atl. 598 (wherein it is shown that 
the assignment passes the legal title 
under the statute now prevailing); 
Howe v. Smeeth Copper Co., 48 Atl. 
24. N. Y. — Richtmeyer r. Keinscn, 38 
N. Y. 206; Allen V. Smith, 16 N. X. 
415; McKee V. Judd, 12 N. Y. 622, 
64 Am. Dec. 515; Foster v. Central 
Nat. Bank, 106 App. Div. 616, 94 N. 
Y. Supp. 1146, affirmed, 183 N. Y. 379, 
76 N. E. 338 (memo.); Baumert V. 
Daeschler, 65 Misc. 526, 120 N. Y. 
Supp. 957; Penhollow V. Lawyers' Title 
Ins. Co., 30 Misc. 778, 63 N. Y. Supp. 
390; Haller v. Ingraham, 101 N. Y. 
Supp. 789; Johnston v. Bennett, 5 Abb. 
Pr. (N. S.) 331; Piatt V. Stout, 14 Abb. 
I'r. 178; Allgoever V. Edmunds, 66 
Barb. 579; Graves V. Spier, 58 Barb. 
349; Van Rensselaer V. Owen, 48 Barb. 
61, 33 How. Pr. 12. N. C. — Gill v. 
Dixon, 131 N. C. 87, 42 S. E. 538; 
Timberlake V. Powell, 99 N. C. 233, 5 
S. E. 410;' Moore V. Nowell, 94 N. C. 
265. Ohio. — Allen v. Miller, 11 Ohio 
St. 374; Hall V. Cincinnati, etc. R. Co., 
1 Disney 58. Ore. — Gregoire V. Rourke, 
28 Ore. 275, 42 Pac. 996; Little v. 
Portland, 26 Ore. 235, 37 Pac. 911; 
Dawson v. Pogue, 18 Ore. 94, 22 Pac. 
637, 6 L. R. A. 176. Term. — Spring 
City Bank v. Rhea County, 59 S. W. 
442. Tex. — Winn V. Ft. Worth, etc. 
R. Co., 12 Tex. Civ. App. 198, 33 S. 
W. 593. Utah. — Lawlex v. Jennings, 
18 Utah 35, 55 Pac. 60. Va. — Avlett 
v. Walker, 92 Va. 540, 24 S. E. 226; 
Tyler v. Ricamore, 87 Va. 466, 12 S. E. 
799; Norfolk, etc. R. Co. V. Read, 87 
Va. 185, 12 S. E. 395; Steb- 
bins v. Bru:e, 80 Va. 389. Wash. 
Von Tobel v. Stetson Mill Co., 32 
Wash. 683, 73 Pac. 788. W. Va.— 
Wallace V. Lerov, 57 W. Va. 263, 50 
S. E. 243, 110 Am. St. Rep. 777; St. 
Lawrence Boom Co. v. Price, 49 W. Va. 
432, 38 S. E. 526; Cochrane r. Hyre, 
49 W. Va. 315, 3S S. E. 554; Thomas 
v. Linn, 40 W. Va. 122, 20 S. E. 878. 

Vol. Ill 



98 



ASSIGNMENTS 



The statutes effect a part or all of the following changes: The dis- 
tinction between actions at law and suits in equity is abolished 
and a single civil action is provided which may or must be prose- 
cuted in the name of the real party in interest ; 45 assignees of choses 
in action are expressly authorized to sue in their own names ; 46 all 



Wis. — Chase v. Dodge, 111 Wis. 70, 
86 N. W. 548; Skobis v. Ferge, 102 
Wis. 122, 78 N. W. 426; Tyson v. Me- 
Guineas, 25 Wis. .656; Smith v. Chi- 
cago & N. E. Co., 23 Wis. 267. Eng.— 
Fitzroy v. Cave (1905), 2 K. B. 364, 
74 L. J. K. B. 829. Can. — Wallace 
v. Gilchrist, 24 U. C. C. P. 40; Hos- 
trawser v. Eobinson, 23 U. C. C. P. 
350; Wellington V. Chard, 22 U. C. C. 
P. 518; Blair v. Ellis, 34 U. C. Q. B. 
466; Blackley v. Dooley, 18 Ont. 381. 

An action for money had and re- 
ceived will lie by the assignee of funds 
against one receiving such funds with- 
out right. Brooks V. Hinton State 
Bank, 26 Okla. 56, 110 Pac. 46. 

45. Long v. Heinrich, 46 Mo. 603; 
Walker v. Mauro, 18 Mo. 564; East 
Tex. F. Ins. Co. v. Coffee, 61 Tex. 287; 
Galveston, etc. E. Co. v. Freeman, 57 
Tex. 156; Mims v. Swartz, 37 Tex. 13; 
Bullion v. Campbell, 27 Tex. 653; Heard 
v. Lockett, 20 Tex. 162; Eollinson v. 
Hope, 18 Tex. 446; Guest v. Ehine, 
16 Tex. 549; Devine v. Martin, 15 
Tex. 25; Merlin V. Manning, 2 Tex. 
351; Ogden v. Slade, 1 Tex. 13; Winn 
v. Fort Worth, etc. E. Co., 12 Tex. Civ. 
App. 198, 33 S. W. 593; Texas, etc. E. 
Co. v. Wright, 2 Wills. Civ. Cas., § 339. 

See infra, I, C, 4. 

46. U. S. — Salmon v. Eural Inde- 
pendent School Dist., 125 Fed. 235. 
Ark. — In certain cases. Block v. 
Walker, 2 Ark. 4 (assignee of a bond); 
Gamblin v. Walker, 1 Ark. 220. Conn. 
Eev. Stat. 1902, §631 (bona fide as- 
signee). See Uncas Paper Co. v. Cor- 
bin, 75 Conn. 675, 55 Atl. 165. Ind. — 
Horner's Ann. Stats. 1901, §§5501, 
5502. la. — Goodnow V. Litchfield, 63 
Iowa 275, 19 N. W. 226; Ann. Code 
1907, §§ 3044, 3047. Me. — Eev. St. 
1903, § 146. Mass. — Eev. St. 1902, c. 
173 § 4. Mich. — Cilley v. Van Patten, 
58 Mich. 404, 25 N. W. 326; Water- 
town F. Ins. Co. v. Grovers & Bakers 
S. M. Co., 41 Mich. 131, 1 N. W. 961, 
32 Am. Eep. 146; Blackwood v. Broom, 
32 Mich. 104. Under How. Anno. St., 
§ 7344, see Eobinson v. Watson, 101 



Mich. 466, 59 N. W. 811; Hyma v. 
Three Eivers Nat. Bank, 79 Mich. 167, 
44 N. W. 427. Miss. — See Wright V. 
Hardy, 76 Miss. 524, 24 So. 697. Neb. 
Weir v. Anthony, 35 Neb. 396, 53 N. 
W. 206. N. J. — Vickers v. Electro- 
zone, etc. Co., 66 N. J. L. 9, 48 Atl. 
606; Howe V. Smeeth Copper, etc. Co., 
48 Atl. 24; Allen v. Paneoast, 20 N. 
J. L. 68 (holding that an assignee of 
a bond may sue in his own name, al- 
though the bond was not payable to 
the assignee). N. Y. — Barker v. Clark, 
12 Abb. Pr. (N. S.) 106; Armstrong v. 
Cushney, 43 Barb. 340; Monahan v. 
Story, 2 E. D. Smith 393; Cobb v. How- 
ard, 10 N. Y. Leg. Obs. 353. Under 
N. Y. Act of 1853, see Van Derveer, 
v. Wright, 6 Barb. 547; Seeley v. 
Seeley, 2 Hill 496. Pa. — Elmer v. Hall, 
148 Pa. 345, 23 Atl. 971. S. C — War- 
ing v. Cheeseborough, 4 Eich. 243 note; 
Farmer v. Baker, 3 Brev. 548 (decided 
under the S. C. Act of 1808). Term.— 
Marrigan v. Page, 4 Humph. 246, where 
the assignment is of a note or agree- 
ment for the payment of money or the 
delivery of specific articles or for the 
performance of any duty. Tex. — 
Knight t;. Holloman, 6 Tex. 153 (as- 
signees of non-negotiable instruments) ; 
Koeningheim V. Eandolph, 1 White & 
Wills. § 764. Vt. — Chandler v. War- 
ren, 30 Vt. 510. Wash. — Code of 
Proc, § 145; Graham v. McCoy, 17 
Wash. 63, 48 Pac. 780, 49 Pac. 235; 
Bellingham Bay Boom Co. v. Brisbois, 
14 Wash. 173, 44 Pac. 153. W. Va.— 
W. Va. Code (1887), c. 99, §14, au- 
thorizes the assignee of any bond, note, 
account or writing, not negotiable, to 
sue in his own name in any actions 
thereon that the assignor could en- 
force. Thomas V. Linn, 40 W. Va. 122, 
20 S. E. 878. Eng. — Judicature Act of 
1873 (36 & 37 Vict., c. 66, §25 [6]) 
gives the assignee all the remedies the 
assignor had, where the assignment of 
a debt or other lega. chose is abso- 
lute and in writing and notice thereof 
is given to the debtor. 



vol m 



ASSIGNMENTS 



99 



choses, or certain designated ehoses, are made assignable. 47 

2. Choses in Action Ex Delicto. — Likewise, by virtue of the stat- 
utory changes, 48 an assignee of a right of action ex delicto that will 



Virginia Code (1873), c. 141, § 17, 
authorizes the assignee of any bond, 
note or writing, not negotiable, to 
maintain any action, in his own name, 
which the original obligee or payee 
might have brought, but must allow 
set-offs against himself and those exist- 
ing against the assignor at the time 
of notice to the debtor of the assign- 
ment. Gknn v. Scott, 28 Fed. 804. 
But the statute does not apply where 
an open account between two firms 
having common members was as- 
signed. Aylett V. Walker, 92 Va. 540, 

24 S. E. 226; Stebbins v. Bruce, 80 
Va. 389; Gordon v. Rixey, 76 Va. 694; 
Feazle v. Dillard, 5 Leigh (Va.) 30. 

Action in Assignee's Name Express- 
ly Authorized by Statute. — Statute 
authorizes an assignee by indorsement 
of a contract for the performance of 
any act or duty to sue in his own 
name. Phillips v. Sellers, 42 Ala. 658; 
Henley v. Bush, 33 Ala. 636; Skinner 
v. Bedell's Admr., 32 Ala. 44. But a 
judgment is not a contract in writing 
for the payment of money or other 
thing, and the assignee thereof can- 
not, under the statute, sue in his own 
name. Lovins v. Humphries, 67 Ala. 
437; Bunnell v. Magee, 9 Ala. 433. 

Statute permits the assignee to sue 
in his own name where the assignor 
does pendente lite. Phillips v. Wilson, 

25 111. App. 427. See Wetherbee t;. 
Fitch, 117 111. 67, 7 N. E. 513; St. 
1896, c. 3, § 5 (assignee of designated 
choses). 

Statute authorizing the assignee of a 
bond or chose in action for the pay- 
ment of money, or of a legacy. Out- 
toun V. Durlin, 72 Md. 536, 20 Atl. 
134; Crisfield v. State, 55 Md. 192 
(Maryland Act of 1829); Lucas v. 
Byrne, 35 Md. 485; Kent v. Somervell, 
7 Gill & J. (Md.) 265. But see Goble 
v. Scarlett, 56 Md. 169. 

Unless the assignment is in writing, 
the assignee cannot, under the stat- 
ute, sue in his own name. U. S. — 
New York Mutual Life Ins. Co. v. Wat- 
son, 30 Fed. 653, construing a Georgia 
statute. Ga. — Kirkland v. Dryf us, 103 
Ga. 127, 29 S. E. 612; Planter's Bank 
v. Prater, 64 Ga. 609; Turk v. Cook, 



63 Ga. 681. la. — Williams v. Soutter, 
7 Iowa 435; Andrews V. Brown, 1 Iowa 
154. Md. — Chesley v. Taylor, 3 Gill 
251. Miss. — Tully 0. Herrin, 44 Miss. 
626. 

Where the statute authorizes the as- 
signee to sue in his own name, the per- 
mission of the assignor is not neces- 
sary. Gilman v. American Producer's 
Controlling Co., 180 Mass. 319, 62 N. 
E. 267. 

47. Choses Assignable by Statute. — 
U. S. — Morrison v. North American 
Transp., etc. Co., 85 Fed. 802 (construc- 
ing Ohio statute) ; May v. Logan 
County, 30 Fed. 250 (construing a 
Rhode Island statute). Ala. — Code, 
1896, § 876, contracts for payment of 
money are assignable. Ark. — Kirby'a 
Digest, § 509. Cal. — St. 1850, p. 332. 
Ga. — Code, 1895, § 3077; Wilson v. Tol- 
son, 79 Ga. 137, 3 S. E. 900. HI. — 
St. 1896, c. 3, §§ 3, 4. la. — Ann. Code, 
1907, §§3044, 3047. Kan. — Thorn- 
burgh v. Cole, 27 Kan. 490; Shively 
v. Beeson, 24 Kan. 352; Civ. Code, § 26 
(every chose in action is assignable ex- 
cept a tort); M'Crum v. Corby, 11 Kan. 
464. Ky. — Sanders v. Blain 's Admr. 
6 J. J. Marsh. 446, 22 Am. Dec. 86; 
Conn v. Jones, Hard. 8; St. 1909, §474. 
Miss. — Code, 1906, §718. N. Y. — 
Birdseye Gen. Laws (3d ed.), p. 154. 
N. D. — Rev. St. 1905, § 4903. Pa.— 
1 Purden's Dig. (13th ed), p. 439. 
Tenn. — Bradley County V. Surgoine, 6 
Baxt. 108, but assignee must have the 
legal title. Wash. — Neg. Inst. Law, 
§ 49 (vests title in transferee without 
endorsement) ; Swenson 0. Stoltz, 36 
Wash. 318, 321, 78 Pac. 999. 

The statute making bonds, bills and 
notes for payment of money assignable 
does not authorize an assignee of a 
bond with a collateral condition to 
sue in his own name. Henderson v. 
Hepburn, 2 Call (Va.) 232; Craig v. 
Craig, 1 Call (Va.) 483. See also 
Lewis v. Harwood, 6 Cranch (U. S.) 
82, 3 L. ed. 160. 

48. See not<^ 45-47, supra. 

How. Mich. St., § 7344, authorizing 
an assignee of any note, bond or 
"other chose in action" to sue there- 
on, in his own name, comprehends an 

vol m 



100 



ASSIGNMENTS 



survive to the personal representatives may sue therefor in his 
own name; 49 as where the tort is injury to one's estate, 50 or by tak- 
ing and converting personal property, 51 in. which latter case, how- 
ever, a demand and refusal, subsequent to the assignment, is a 
prerequisite to the maintenance of the action in the assignee's own 
name. 52 

3. Effect of Statutes. — a. As to Assignability. — The statutes per- 
mitting or requiring the real party in interest to sue in his own 
name or expressly authorizing an assignee to do so do not enlarge 
the right of assignment nor authorize the assignment of choses not 
otherwise assignable. 83 



action of tort. Felt v. Eeynolds Bo- 
tary Fruit Evap. Co., 52 Mich. 602, 
18 N. W. 378; Watson v. Watson, 49 
Mich. 540, 14 N. W. 489; Finn V. Cor- 
bitt, 36 Mich. 318; Grant V. Smith, 
26 Mich. 201; Brady V. Whitney, 24 
Mich. 154; Cook v. Bell, 18 Mich. 387; 
Final V. Backus, 18 Mich. 218. 

49. la. — Vi \ont v. Chicago & N. 
W. K. Co, 64 Iowa 513, 17 N. W. 
31, 21 N. W. 9, 19 Am. & Eng. B. 
Cas.- 215. Mich. — Felt v. Eeynolds 
Eotary Fruit Evap. Co., 52 Mich. 602, 
18 N. W. 378; Watson v. Watson, 49 
Mich. 540, 14 N. W. 4S9; Finn v. Gor- 
bitt, 36 Mich. 318; Grant v. Smith, 26 
Mich. 201; Brady V. Whitney, 24 Mich. 
154; Cook V. Bell, 18 Mich. 387; Final 
V. Backus, 18 Mich. 218. Mo. — Snyder 
v. Wabash, etc. E. Co., 86 Mo. 623, 
overruling Wallen V. St. Louis, etc. E. 
Co. 74 Mo. 521; Doering v. Kenamore, 
86 Mo. 588; Smith v. Kennett, 18 Mo. 
154; Goodger v. Finn, 10 Mo. App. 226. 
Neb. — Kinsella V. Sharp, 47 Neb. 664, 
66 N. W. 634, as to the right of a 
donee of property to maintain an ac- 
tion for its conversion. N. Y. — Mc- 
Keage V. Hanover F. Ins. Co., 81 N. 
Y. 38, 37 Am. Eep. 471; Waldron v. 
Willard, 17 N. Y. 466; McKee V. Judd, 
12 N. Y. 622, 64 Am. Dec. 515; Wick- 
ham V. Eoberts, 112 App. Div. 742, 98 
N. Y. Supp. 1092; Alexander v. Glov- 
ersville, 110 App. Div. 791, 97 N. Y. 
Suppi 198; Butler v. New York, etc. 
E. Co., 22 Barb. 110; Drake V. Smith, 
12 Hun 532; Purple v. Hudson Eiver 
E. Co., 4 Duer 74;-Monahan v. Story, 
2 E. D. Smith 393. N. C — Morgan 
v. Bradley, 10 N. C. 559; Eobertson v. 
Stuart, 2 N. C. 159. Okla. — Kansas 
City Co. V. Shutt, 24 Okla. 96, 104 Pac. 
51. Wis. — Arpin V. Burch, 68 Wis. 
619, 32 N. W. 681. 



50. Injuries to Property. — Snyder 
v. Wabash, etc. E. Co., 86 Mo. 623, 
(overruling Wallen v. St. Louis, etc. E. 
Co., 74 Mo. 521); Doering 'v. Kena- 
more, 86 Mo. 588; Morgan V. Brad- 
ley, 10 N. C. 559; Eobertson V. Stuart, 
2 N. C. 159. 

51. Mo. — Smith V. Kennett, 18 Mo. 
154; Goodger v. Finn, 10 Mo. App. 22"6. 
Neb. — Kinsella v. Sharp, 47 Neb. 664, 
66 N. W. 634, construing Neb. Code 
Civ. Proc, § 29. N. Y. — Chase v. 
Chase, 1 Paige 198; Clowes v. Haw- 
ley, 12 Johns. 484. Wis. — Arpin V. 
Burch, 68 Wis. 619, 68 N. W. 681. 

But an equitable assignee of a chat- 
tel mortgage cannot maintain an ac- 
tion in his own name, for the conver- 
sion of the mortgaged property. Baker 
V. Seavey, 163 Mass. 522, 40 N. E. 
863, 47 Am. St. Eep. 475. See also 
Clapp v. Shepard, 2 Mete. (Mass.) 127. 

52. Smith V. Kennett, 18 Mo. 154; 
Eobinson v. Weeks, 6 How. Pr. (N. Y.) 
161, overruling Gardner v. Adams, 12 
Wend. (N. Y.) 297; Van Hassell V. 
Borden, 1 Hilt. (N. Y.) 128, citing Hall 
v. Eobinson, 2 JS1. ¥. 293; Cass v. New 
York, etc. E. Co., 1 E. D. Smith (N. Y.) 
522. 

53. U. S. — Joseph Dixon Crucible 
Co. v. Paul, 167 Fed. 784, 93 C. C. 
A. 204; Davis v. St. Louis, etc. E. Co., 
25 Fed. 786. la. — Weire V. Daven- 
port, 11 Iowa 49, 77 Am. Dec. 132. 
Mo. — Snyder v. Wabash, etc. E. Co., 
86 Mo. 623. N. J. — Lindsay V. Mc- 
Inerney, 62 N. J. L. 524, 41 Atl. 701. 
N. Y. — Butler v. New York, etc. E. 
Co., 22 Barb. 110; Thurman r. Wells, 
18 Barb. 500; Purple v'. Hudson Eiver 
E. Co., 4 Duer 74; Hyslop v. Eandall, 
11 How. Pr. 97, 4 Duer 660; Hodgman 
V. Western E. Corp., 7 How. Pr. 492. 
Ore. — Hillman V. Shannahan, 4 Ore. 



vol. in 



ASSIGNMENTS 



101 



b. As to Remedies. — (I.) Statutory Remedies Cumulative. — Where the 
statutory provisions, authorizing an assignee to sue in his own name 
or providing that the real party in interest may sue, have been con- 
strued as permissive merely, the common law remedies of the as- 
signee still exist, and he may enforce the chose in the name of the 
assignor. 54 Where the assignee may thus still pursue his remedies 
in the name of the assignor, it is held that he has control over the 
action, as at common law ; 55 that the assignor can no longer enforce 
the action for himself; 68 and that the assignor must not interfere, 57 
further than to secure indemnity for cost 

(II.) Statutory Remedies Exclusive. — Where, however, such statutes 
are construed as mandatory, the common law remedies are super- 
seded. 59 Also, where the statute makes choses in action assignable 



163, 18 Am. Rep. 281. S. C — Childs 
v. Alexander, 22 S. C. 169. Va. — Steb- 
bins v. Bruce, 80 Va. 389; Gordon V. 
Kixey, 76 Va. 694; Feazle V. Dillard, 
5 Leigb 30. Wis. — Mc Arthur v. Green 
Bay, etc. Canal Co., 34 Wis. 139. 

54. Statutory Remedies Cumulative. 
Ark. — Boqua V. .Marshall, 88 Ark. 
373, 114 S. \V. 714; Lanigan V. North, 

69 Ark. 62, 63 S. W. 62; St. Louis, 
I. M. & S. R. V. Camden Bank, 47 
Ark. 541, 1 S. W. 704. Fla. — Sammis 
V. Wightman, 31 Fla. 10, 12 So. 526. 
HI. — Congress Const. Co. v. Farson & 
Libbey Co., 199 111. 398, 65 N. E. 357. 
Me. — Rogers r. Brown, 103 Me. 478, 

70 Atl. 206; McDonald V. Laughlin, 74 
Me. 480. Md. — Caniield v. Mcllwaine, 
32 Md. 94. Mich. — Park v. Toledo, 
etc. R. Co., 41 Mich. 352, 1 N. W. 
1032; Sisson v. Cleveland, etc. R. Co., 
14 Mich. 489, 90 Am. Dec. 252. N. J. 
Elsberg v. Honeck, 76 N. J. L. 181, 68 
Atl. 1090; Sullivan V. Visconti, 68 N. J. 
L. 543, 53 Atl. 598. S. C. — Coachman v. 
Hunt, 2 Rich. L. 450 (under Act of 1798) ; 
Thorn v. Myers, 5 Strobh. 210. Term. 
Simpson v. Moulden, 3 Coldw. 429; 
Moore V. Weir, 3 Sneed 46. Vt. — Chase 
V. Plymouth, 20 Vt. 469, 50 Am. Dec. 
52. Va. — Dunn v. Price, 11 Leigh 
203; Garland V. Richeson, 4 Rand. 266. 
W. Va. — Bentlev r. Standard Fire 
Ins. Co., 40 W. Va. 729, 22 S. E. 584; 
Scraggs v. Hill, 37 \V. Va. 706, 17 
S. E. 185; Clarke V. llogeman, 13 W. 
Va. 718. 

55. Boqua f. Marshall, 88 Ark. 373, 
114 S. W. 714. 

56. Ky. — Lvtle v. Lytle, 2 Met. 
127. Me. — Reed V. Nevins, 38 Me. 193. 
Mass. — Coulter v. Haynes, 146 Mass. 
458, 16 N. E. 19; Moore v. Spiejrel. 



143 Mass. 413, 9 N. E. 827; Moore v. 
Coughlin, 4 Allen 335; Derby V. San- 
ford, 9 Cush. 263. Minn. — St. An- 
thony Mill Co. V. Vandall, 1 Minn. 246. 
Tex. — Allen v. Pannell, 51 Tex. 165; 
Winn V. Ft. Worth, etc. R. Co., 12 
Tex. Civ. App. 198, 33 S. W. 593. Eng. 
Jones V. Ferrell, 1 De G. & J. 208, 44 
Eng. Reprint 703. 

57. U. S. — Mandeville V. Welch, 1 
Wheat. 233, 4 L. ed. 79, 5 Wheat. 277, 

5 L. ed. 87; McCullum v. Coxe, 1 Dall. 
139, 1 L. ed. 72. Ind. — State v. Herod, 

6 Blackf. 444. Me. — Southwick V. 
Hopkins, 47 Me. 362. Miss. — Ander- 
son v. Miller, 7 Smed. & M. 586. N. 
Y. — Martin V. Hawks, 15 Johns. 405. 
N. C — Deaver V. Elle, 42 N. C. 24; 

V. Arrington, 2 N. C. 164. 



58. Southwick V. Hopkins, 47 .Me. 
362. 

59. Ind. — Sinker v. Floyd, 104 Ind. 
291, 4 N. E. 10; Bartholomew County 
v. Jameson, 86 Ind. 154; Mountjoy V. 
Adair, 1 Ind. 254. la. — Allen v. New- 
berry, 8 Iowa 65. Kan. — Reynolds v. 
Quaely, 18 Kan. 361. Ky. — Lytle v. 
Lytle, 2 Met. 127. Minn. — St. An- 
thony Mill Co. V. Vandall, 1 Minn. 246; 
Kussell v. Minnesota Cutfit, 1 Minn. 
162. Mo. — Long v. Heinrich, 46 Mo. 
603; Weise V, Gerner, 42 Mo. 527; 
Hatchings V, Weems, 35 Mo. 285; 
Brady r. Chandler, 31 Mo. 28; Van 
Doren r. Pelfe 20 Mo. 455; Conn v. 
Long-Bell Lumb. Co., 66 Mo. App. 483; 
Buffington V. South Missouri Land Co., 
25 Mo. App. 492. Neb.- — Crum v. 
Stanley, 55 Neb. 351, 75 N. W. 851; 
Hoagland V. Van Etten, 22 Neb. 681, 35 
i\\ W. 869, 23 Neb. 462, 36 N. W. 
755; Hieklin v. Nebraska City Nat. 
Bank. 8 Neb. 463; Seymour v. Street, 



vol. in 



102 



ASSIGNMENTS 



so that the legal title vests in the assignee, he must pursue his reme- 
dies in his own name. 60 And the same is true if the chose, apart 
from statute, is assignable. 61 



5 Neb. 85; Mills v. Hurry, 1 Neb. 327. 
N ev . _ Peck v. Doods, 10 Nev. 204. N. 
Y. — Sheridan v. New York, 68 N. Y. 
30; Greene v. Niagara F. Ins. Co., 6 
Hun 128, 51 How. Pr. 73. N. C — 
State v. Eousseau, 94 N. G. 355. Wis. 
Stuckey v. Fritsche, 77 Wis. 329, 46 N. 
W. 59; Webber V. Quaw, 46 Wis. 118, 
49 N. W. 830. 

60. Ind. — Mountjoy v. Adair, Smith 
96. Ky. — Neyfong v. Wells, Hard. 
561. Miss. — Beck v. Eosser, 68 Miss. 
72, 8 So. 259; Lake V. Hastings, 24 
Miss. 490. Mo. — Jeffers v. Oliver, 5 
Mo. 433. N. J. — Carhart v. Miller, 5 
N. J. L. 675; Eeed v. Bainbridge, 4 N. 
J. L. 400. N. Y. — Cummings V. Mor- 
ris, 25 N. Y. 625. Pa. — Philadelphia 
v. Loekhardt, 73 Pa. 211. R. L — 
Herscovitz V. Guertin, 22 R. I. 594, 48 
Atl. 934. Tex. — East Texas F. Ins. 
Co.'v. Coffee, 61 Tex. 287; Winn v. Ft. 
Worth, etc. E. Co., 12 Tex. Civ. App. 
198, 33 S. W. 593. 

61. Choses Assignable by Statute or 
.Common Law. — U. S. — Withers v. 

Greene, 9 How. 213, 13 L. ed. 109; 
Seott V. Lunt's Admr., 7 Pet. 596, 8 
L. ed. 797; Eeed v. Ingraham, 3 Dall. 
505, 1 L. ed. 697, 4 Dall. 169, 1 L. ed. 
786; Waters V. Millar, 1 Dall. 369, 1 
L. ed. 180; Kemmil V. Wilson, 4 Wash. 
308, 14 Fed. Cas. No. 7,685. Ark.— 
Boque v. Marshall, 88 Ark. 373, 114 S. 
W. 714; Buckner v. Greenwood, 6 Ark. 
200; Eoane v. Lafferty, 5 Ark. 465; 
Gamblin v. Walker, 1 Ark. 220. Cal. — 
Lazard V. Wheeler, 22 Cal. 139. 111.— 
Potter v. Gronbeck, 117 111. 404, 7 N. 
E. 586; Eansom V. Jones, 2 111. 291; 
Wineman V. Hughson, 44 111. App. 22. 
Ind. — Mountjoy v. Adair, 1 Ind. 254. 
la. — Williams V. Soutter, 7 Iowa 435. 
Ky. — Hicks V. Doty, 4 Bush 420; 
Yantes V. Smith, 12 B. Mon. 395; Eus- 
sell v. Petree, 10 B. Mon. 184; Marcum 
«. Hereford, 8 Dana 1; Neyfong v. 
Wells, Hard. 561; Conn V. Jones, Hard 
8; Pigman v. Ward, Sneed 305. Mass 
Kendall V. Carland, 5 Cush. 74; Clark 
v. Swift, 3 Met. 390; Coolidge v. Bug- 
gies, 15 Mass. 387. Mich. — Cook v. 
Bell, 18 Mich. 387; Final v. Backus, 
18 Mich. 218. Minn. — Spencer v. 
Woodbury, 1 Minn. 105. Miss. — Mont- 



gomery v. Handy, 63 Miss. 43; Chi- 
cago, etc. E. Co. v. Packwood, 59 Miss. 
280; Lowenburg v. Jones, 56 Miss. 688, 
31 Am. Eep. 379; Kirkland v. Lowe, 
33 Miss. 423, 60 Am. Dec. 355. Mo.— 
St. Louis v. Clemens, 42 Mo. 69; Smith 
v. Kennett, 18 Mo. 154; Draher v. 
Schreiber, 15 Mo. 602; Hill v. McPher- 
son, 15 Mo. 204, 55 Am. Dec. 142; Mc- 
Carty v. Hall, 13 Mo. 480; Davis v. 
Christy, 8 Mo. 569; Jeffers v. Oliver, 5 
Mo. 433; Thomas v. Wash, 1 Mo. 665; 
Chauvin v. Labarge, 1 Mo. 557. Neb. — 
Weir v, Anthony, 35 Neb. 396, 53 N. 
W. 206. N. H. — Folsom v. Belknap 
County Mut. F. Ins. Co., 30 N. H. 231. 
See Jordan v. Gillen, 44 N. H. 424. N. 
J. — Howe v. Smeeth Copper Co., 48 
Atl. 24; Norris v. Douglass, 5 N. J. 
L. 942; Lacey v. Collins, 5 N. J. L. 
563. N. Y. — Merrill v. Grinnell, 30 
N. Y. 594; Van Eensselaer v. Eead, 26 
N. Y. 558; McKee v. Judd, 12 N. Y. 
622, 64 Am. Dec. 515; Willard V. Till- 
man, 2 Hill 274; Gardner v. Adams, 12 
Wend. 297; Demarest v. Willard, 8 Cow. 
206; Grocers' Nat. Bank v. Clark, 48 
Barb. 26; Smith v. New York, etc. 
E. Co., 28 Barb. 605; King v. 
Kirby, 28 Barb. 49; Butler v. New 
York, etc. E. Co., 22 Barb. 110; Hodg- 
man v. Western E. Corp., 7 How. Pr. 
492; Lobinson v. Weeks, 6 How. Pr. 
161; Johnston v. Bennett, 5 Abb. Pr. 
(N. S.) 331; Drake v. Smith, 12 Hun 
532; Purple v. Hudson Eiver R. Co., 

4 Duer 74; Monahan t". Story, 2 E. 

D. Smith 393.. Ohio. — Hall V. Cin- 
cinnati, etc. R. Co., 1 Disney 58. Pa. 
Fahnestock V. Schoyer, 9 Watts 102; 
Aldricks V. Higgins, 16 Serg. & R. 212. 
S. C. — Folk V. Cruikshanks, 4 Rich. 
L. 243; Waring V. Cheeseborough, 4 
Rich. L. 243 note; Sims v. Eadcliffe, 
3 Eich. L. 287; Smith v. Cook, 2 Mc- 
Mull. L. 58. Tenn. — East Tennessee 

E. Co. v. Henderson, 1 Lea 1; Mutual 
Protection Ins. Co. v. Hamilton, 5 
Sneed 269; Moore v. Weir, 3 Sneed 46. 
Tex. — Devine v. Martin, 15 Tex. 25; 
Koeningheim v. Eandolph, 1 White & 
Wills., § 764. Va. — Feazle v. Dillard, 

5 Leigh 30; Craig v. Craig, 1 Call 483; 
Norton v. Eose, 2 Wash. 233. Wis.— 
Murray v. Buell, 76 Wis. 657, 45 N. 



vol. in 



ASSIGNMENTS 



103 



c. Choses Non- Assignable Under Statute. — Where the statutes re- 
lating to assignability are confined to specified kinds of choses, as 
contracts in writing for the payment of money, the remedies at com- 
mon law continue in force, as to other choses, 62 unless in a jurisdic- 
tion where the real party in interest resides, the statute has been 
construed as requiring the person having the beneficial interest to 
sue regardless of the legal title. 63 

d. Assignments Not Conforming to Statute. — Likewise, some stat- 
utes prescribe certain conditions of assignability, as that the assign- 
ment shall be in writing indorsed on the chose, 64 or that the assign- 
ment or a copy thereof shall be filed with the writ. 68 Non-compli- 
ance with these requirements may deprive the assignee of the stat- 
utory remedies, and leave available only the common law remedies. 66 

4. Real Party in Interest. — The decisions are conflicting as to 
who is the real party in interest. On the one hand it is held that if the 
assignment does not pass the legal title, the suit may still be brought 
in the name of the assignor. 67 On the other hand, if the assignment 
confers the entire beneficial interest upon the assignee, he is the 



W. 667, 20 Am. St. Rep. 92; Tyson v. 
McGuineas, 25 Wis. 656; Kimball v. 
Spicer, 12 Wis. 668; Minert v. Emerick, 
6 Wis. 355; Pillsbury V. Mitchell, 5 
Wis. 17. Eng. — Allen v. Bryan, 5 B. 
& C. 512, 11 E. C. L. 292. 

62. Thus in Boqua v. Marshall, 88 
Ark. 373, 114 S. W. 714, it was held 
that a statute which made certain spec- 
ified choses in action assignable, and 
required that all actions must be pros- 
ecuted in the name of the real party 
in interest, did not abrogate the com- 
mon law rule as to choses not assign- 
able under the statute. The assignee 
must enforce his rights in the name of 
the assignor. Moore V. Heany, 34 App. 
Cas. (D. C.) 31, assignee of patent 
rights. 

63. See infra, I, C, 4. 

64. Thus, where an assignment of 
written chose was ineffective because 
it was not endorsed on the document 
as required by the statute, the as- 
signor was held to be the proper party 
plaintiff to bring the action for the 
benefit of his assignee. U. S. — Dex- 
ter v. Sayward, 51 Fed. 729. Ala. — 
Bohanan v. Thomas, 159 Ala. 410, 49 
So. 308. Ga. — Kirkland v. Dryfus, 
103 Ga. 127, 29 S. E. 612. Me. — Ware 
v. Bucksport, etc. E. Co., 69 Me. 97. 
Can.— Wallace v. Gilchrist, 24 U. C. C. 
P. 40; Hostrawser v. Bobinson, 23 U. 
C. C. P. 350; Wellington v. Chard, 22 U. 
C. C. P. 518. 



Where the statute requires the as- 
signment to be in writing, tHe assignee 
under an oral assignment gets only an 
equitable interest and must sue in the 
name of his assignor. la. — Williams 
v. Soutter, / Iowa 435; Andrews v. 
Brown, 1 Iowa 154. Mass. — Rogers 
v. Abbot, 206 Mass. 270, 92 N. E. 472, 
if objection is made. Miss. — Lowen- 
burg v. Jones, 56 Miss. 688, 31 Am. 
Rep. 379; Tully V. Herrin, 44 Miss. 626. 

65. Liberty v. Haines, 101 Me. 402, 
64 Atl. 665; National Shoe & Leather 
Bank v. Gooding, 87 Me. 337, 32 Atl. 
967; Littlefield v. Pinkham, 72 Me. 369. 

In Sleeper v. Gagne, 99 Me. 306, 59 
Atl. 472, it was held to be sufficient 
filing if the assignment was on the 
back of the assign. ' account filed with 
the declaration. 

66. Rogers v. Abbot, 206 Mass. 270, 
92 N. E. 472; Bowen v. New York Cent. 
R. Co., 202 Mass. 263, 88 N. E. 781. 

Likewise assignments prior to stat- 
utory modifications are to be enforced 
as at common law. Thomson v. Caver- 
ly, 148 111. App. 295. 

67. Allison v. Phoenix Ins. Co., 87 
Tex. 593, 30 S. W. 547; Texas Western 
R. Co. v. Gentry, 69 Tex. 625, 8 S. W. 
98; Stewart P. State, 42" Tex. 242; 
Winn v. Ft. Worth, etc. R. Co., 12 Tex. 
Civ. App. 198, 33 S. W. 593; Bentley t?. 
Standard F. Ins. Co., 40 W. Va. 729 
23 S. E. 584. 

vol. m 



104 



ASSIGNMENTS 



real party in interest and may sue as such in his own name, 68 al- 
though he does not have the legal title. 69 

5. What Law Governs. — The law of the jurisdiction where the 
remedy is sought (lex fori) governs the remedies of parties to 



68. Beneficial Owner as Real Party 
in Interest. — U. S. — Davis v. Bils- 
land, 18 Wall. 659, 21 L. ed. 969; Ed- 
munds v. Illinois Cent. E. Co., 80 Fed. 
78; Robinson v. .Memphis' R. Co., 16 
Fed. 57. Ark. — Love r. Cahn, 93 Ark. 
215, 124 S. W. 259; Caldwell v. Meshew. 
44 Ark. 564; Heartman v. Franks, 36 
Ark. 501. Cal. — Quan Wye v. Chin 
Lin Hee, 123 Cal. 185, 55 Pac. 783; 
Wing Ho v. Baldwin, 70 Cal. 194, 11 
Pac. 565; Cheney v. Newberry, 67 Cal. 
126, 7 Pac. 445; McLaren v. Hutchinson. 
22 Cal. 187, 83 Am. Dec. 59. Colo. — 
Perkins v. Peterson, 2 Colo. App. 242, 29 
Pac. 1135. Fla. — Robinson V. Nix, 22 
Fla. 321. Ind. — Sinker v. Kidder, 123 
Ind. 528, 24 N. E. 341; Bartholomew 
County v. Jameson, 36 Ind. 154 ; Swails V. 
Coyerdill, 17 Ind. 337; Patterson v. Craw- 
ford, 12 Ind. 241; Mewherter V. Price, 
11 Ind. 199. la. — Younker v. Martin, 
18 Iowa 143; Shepard V. Ford, 10 Iowa 
502; State V. Putterworth, 2 Iowa 158. 

, Kan. — Rullman V. Rullman, 81 Kan. 
521, 106 Pac. 52. Ky. — Hicks v. Do- 
ty, 4 Bush 42 r -. Minn. — Russell V. 
Minnesota Outfit, 1 Minn. 162. Mo. — 
Turner V. Hayden, 33 Mo. App. 15. 
Neb. — Weir V. Anthony, 35 Neb. 396, 
53 N. W. 206. N. Y. — Oneida Bank 
v. Ontario Bank, 21 N. Y. 490; Van 
Vechten V. Graves, 4 Johns. 403; Small 
v. Sloan, 1 Bosw. 332; Hastings v. Mc- 
Kinley, 1 E. D. Smith 273. N. C. — 
Thompson V. Osborne, 152 N. C. 408, 67 
S. E. 1029. Ohio. — Hall V. Cincin- 
nati, etc. R. Co., 1 Disn. 58. Ore.— 
State Ins. Co. F. Oregon R. Co., 20 Ore. 
563, 26 Pac. 838, where partial assign- 
ment, assignee cannot sue alone. S. C. 
Childs r. Alexander, 22 S. C. 169. 
Tex. — East Texas F. Ins. Co. r. Coffee, 
61 Tex. 287; Galveston, etc. R. Co. V. 
Freeman, 57 Tex. 156; Bullion V. Camp- 
bell, 27 Tex. 653; Hopkins F. Upshur, 
20 Tex. 89, 70 Am. Dec. 375; Devine F. 
Martin, 15 Tex. 25; Ogden v. Slade, 1 
Tex. 13. Wis. — Chase v. Dodge, 111 
Wis. 70, 86 N. W. 548. 

69. Real tsty in Interest Without 
Legal Title. — U. S. — Marvin r. Ellis, 
9 Fed. 367. Ariz. — Sroufe V. Soto, 5 
Ariz. 10, 43 Pre. 221. Cal. — Tuller F. 



Arnold, 98 Cal. 522, 33 Pac. 445; 
O'Connor v. Irvine, 74 Cal. 435, 16 Pac. 
236; Gradwohl v. Harris, 29 Cal. 150; 
Wheatley v. Strobe, 12 Cal. 92, 73 Am. 
Dec. 52?. Colo. — Bassett v. Inman, 
7 Colo. 270, 3 Pac. 383. la. — Green 
v. Marble, 37 Iowa 95; Pearson v. Cum- 
mings, 28 Iowa 344; Cottle v. Cole, 20 
Iowa 481; Conyngham v. Smith, 16 
Iowa 471. Mich. — Showen v. Owens 
C- , 158 Mich. 321, 122 N. W. 640, 133 
Am. St. Rep. 376; Henderson V. Detroit, 
etc. R. Co., 131 Mich. 438, 91 N. W. 
630. Minn. — Struckmeyer F. Lamb, 
64 Minn. 57, 65 N. W. 930; Anderson 
v. Reardon, 46 Minn. 185, 48 N. W. 
777. Mo. — Guerney r. Moore, 131 Mo. 
650, 32 S. W. 1132; Gardner v. Arm- 
strong, 31 Mo. 535; Roth p. Continen- 
tal Wire Co., 94 Mo. App. 236, 68 S. W. 
594. Nev. — Carpenter v. Johnson, 1 
Nev. 331. N. Y. — Foster p. Cent. Nat. 
B \ 183 N. Y. 379, 76 N. E. 338, 106 
App. Div. 616, memo., 94 N. Y. Supp. 
1146; Sheridan v. New York, 68 N. Y. 
30; Eaton v. Alger, 47 N. Y. 345; 
Meeker v. Claghorn, 44 N. Y. 349; Al- 
len v. Brown, 44 N. Y. 228; Cummings 
F. Morris, 25 N. Y. 625; Cronk v. Cran- 
dall, 137 App. Div. 440, 121 N. Y. 
Supp. 805; Cunningham v. Cohn, 14 
Misc. 12, 35 N. Y. Supp. 125; Bedford 
v. Sherman, 68 Hun 317, 22 N. Y. 
Supp. 892; Burtnett P. Gwynne, 2 Abb. 
Pr. 79; Richardson v. Mead, 27 Barb. 
178; Arthur p. "3rooks, 14 Barb. 533; 
Freeman F. Falconer, 44 N. Y. Super. 
132; Hastings p. McKinley, 1 E. D. 
Smith 273. Ohio. — Lee P. Fraternal 
Mut. Ins. Co., 1 Handy 217. Ore. — 
King v. Miller, 53 Ore. 53, 97 Pac. 542; 
Gregoire v. Rourke, 28 Ore. 275, 42 
Pac. 996; Dnwson v. Pogue, 18 Ore. 94, 
22 Pac. 637, 6 L. R. A. 176. Tex.— 
Hopkins v. Upshur, 20 Tex. 89, 70 Am. 
Dec. 375; Devine v. Martin, 15 Tex. 25. 
Va. — Dunn v. Price, 11 Leigh 203; 
Garland F. Richeson, 4 Rand. 266. 
Wash. — Von Tobel v. Stetson Mill Co , 
32 Wash. 683, 73 Pac. 788. Wis. — 
Robbins v. Devcrill, 20 Wis. 142, as to 
waiver of objection that assignee has 
no beneficial interest. 

See infra, II, A, 2; U, A, 4. 



Vol. Ill 



ASSIGNMENTS 



105 



assignments. 70 The federal courts will follow the local law. 71 
D. Partial Assignments. — 1. At Law. 72 — No action at law 



70. U. S. — Glenn V. Marbury, 145 
U. 3. 499, 12 Sup. Ct. 914, 36 L. ed. 
790; Pritchard V. Norton, 106 U. S. 
124, 1 Sup. Ct. 102, 27 L. ed. 104; Mar- 
tin v. Ihmsen, 21 How. 394, 16 L. ed. 
134; Joseph Dixon Crucible Co. V. Paul, 
167 Fed. 784, 93 C. C. A. 204. Mass.— 
Mayhew v. Pentecost, 129 Mass. 332; 
Foss V. Nutting, 14 Gray 484. Miss. — 
Tully V. Herrin, 44 Miss. 626. Eng. — 
Wolff v. Osholm, 6 Maule & Selw. 92, 
105 Eng. Reprint 1177. 

In Glenn v. Marbury, 145 U. S. 499, 
12 Sup. Ct. 914, 36 L. ed. 790, the court 
quoted approvingly from "Pritchard 
v. Norton, 106 U. S. 124, 130 (27 L. 
ed. 104, 106), where Mr. Justice 
Matthews, delivering judgment, said: 
'Whether an assignee of a chose in ac- 
tion shall sue in his own name or that 
of his assignor is a technical ques- 
tion of mere process, and determinable 
by the law of the forum; but whether 
the foreign assignment, on which the 
plaintiff claims, is valid at all or 
whether it is valid against the defend- 
ant, goes to the merits and must be 
decided by the law in which the case 
has its legal seat. Wharton, Conflict 
of Laws, §§735, 736.' " 

71. Delaware County v. Diebold 
Safe & L. Co., 133 U. S. 473, 10 Sup. 
Ct. 399, 33 L. ed. 674; Arkansas Val. 
Smelt. Co. v. Belden Min. Co., 127 U. 
S. 379, 8 Sup. Ct. 1308, 32 L. ed. 246; 
Thompson v. Central Ohio R. Co., 6 
Wall. 134, 18 L. ed. 765; Joseph Dixon 
Crucible Co. v. Paul, 167 Fed. 784, 93 
C. C. A. 204; Paige v. Rochester, 137 
Fed. 663; Nederland L. Ins. Co. v. 
Hall, 84 Fed. 278, 55 U. S. App. 598, 
27 C. C. A. 390; Edmunds V. Illinois 
Cent. R. Co., 80 Fed. 78; Dexter V. 
Sayward, 51 Fed. 729; Marine Ins. Co. 
v. St. Louis, etc. R. Co., 41 Fed. 643; 
May v. Logan County, 30 Fed. 250; 
Weed Sew. Mach. Co. t;. Wicks, 3 Dill. 
261, 29 Fed. Cas. No. 17,348; Spratley 
v. Hartford Ins. Co., 1 Dill. 392, 22 
Fed. Cas. No. 13,256. But see Suydani 
V. Ewing, 2 Blatchf. 359, 23 Fed. Cas. 
No. 13,655, as to practice in federal 
courts prior to U. S. Rev. St. 914. 

72. Except by statute the law does 
not recognize the assignment of a part 
of a chose in action. U. S. — Mande- 



ville v. Welch, 5 Wheat, 277, 5 L. ed. 
87; The Elmbank, 72 Fed. 610. Cal.— 
Thomas v. Rock Island, G. & S. Min. 
Co., 54 Cal. 578; Grain V. Aldrich, 38 
Cal. 514, 99 Am. Dec. 423. Colo. — 
City of Pueblo v. Dye, 44 Colo. 35, 96 
Pac. 969; McMurray V. Marsh, 12 Colo. 
App. 95, 54 Pac. 852; Sneddon V. 
Ilarmes, 5 Colo. App. 477, 39 Pac. 68. 
D. C. — Sincell v. Davis, 24 App. Cas. 
218. Ga. — Reviere v. Chambliss, 120 
Ga. 714, 48 S. E. 122; Rivers V. Wright, 
117 Ga. 81, 43 S. E. 499; Central of 
Georgia R. Co. v. Dover, 1 Ga. App. 
240, 57 S. E. 1002. 111. — Potter V. 
Gronbcck, 117 111. 404, 7 N. E. 586. 
Me. — Whitcomb v. Waterville, 99 Me. 
75, 58 Atl. 68; Getchell v. Maney, 69 
Me. 442. Mass. — James v. Newton, 
14^2 Mass. 366, 8 N. E. 122, 56 Am. 
Rep. 692; Warren v. Comings, 6 Cush. 
103; Gibson v. Cooke, 20 Pick. 15, 32 
Am. Dec 194. Mich. — Milroy v. Spurr, 
etc. Co., 43 Mich. 231, 5 N. W. 287. 
Minn. — Dean v. St. Paul & D. R. Co., 
53 Minn. 504, 55 N. W. 628. Mo.— 
Loomis V. Robinson, 76 Mo. 488; Bur- 
nett v. Crandall, 63 Mo. 410; McPike 
V. McPherson, 41 Mo. 521; Love v. 
Fairfield, 13 Mo. 300, 53 Am. Dec. 148. 
N. J. — Sternberg & Co. v. Lehigh 
Val. R. Co., 78 N. J. L. 277, 73 
Atl. 39; Van Schoick v. Van Schoick, 
76 N. J. L. 242, 69 Atl. 1080; Otis 
v. Adams, 56 N. J. L. 38, 27 Atl. 
1092. N. Y. — Dickinson V. Tysen, 
125 App. Div. 735, 110 N. Y. Supp. 
269. N. C. — Boyle V. Robbins, 71 
N. C. 130. Ohio. — Pennsylvania Co. v. 
Thatcher, 78 Ohio St. 175, 85 N. E. 55; 
Pittsburg, etc. R. Co. V. Volkert, 58 
Ohio St. 362, 50 N. E. 924; Cincinnati, 
etc. R. Co. v. Lima R. Supply Co., 27 
Ohio C. C. 807. Ore. — State Ins. Co. 
r. Oregon R. Co., 20 Ore. 563, 26 Pac. 
838. Pa. — Hopkins v. Stockdale, 117 
Pa. 365, 11 Atl. 368; Trexler v. Kuntz, 
36 Pa. Super. 352; Fullmer & Co. v. 
Pine Twp., 17 Pa. Co. Ct. 482; Fair- 
grieves v. Lehigh Nav. Co., 2 Phila. 
182, 13 Leg. Int. 356. Tenn. — Allison 
v. Pearce, 59 S. W. 192. Tex. — Gal- 
veston, H. S. R. Co. V. Ginther, 96 Tex. 
295, 72 S. W. 166; Lindsay V. Price, 
33 Tex. 280. Vt. — Burditt r. Porter, 
63 Vt. 296, 21 Atl. 955, 25 Am. St. 

Vol. HI 



106 



ASSIGNMENTS 



can be brought, in the absence of assent, by the debtor to a partial 
assignment, 73 and the assignee can sue at law neither in his own 
name 74 nor in the name of the assignor. 75 



Eep. 763; Carter v. Nichols, 58 Vt. 553, 
5 Atl 197. Wash. — Lewis V. Third 
St., etc. E. Co., 26 Wash. 28, 66 Pac. 
150. W. Va. — Dudley v. Barrett, 66 
W. Va. 363, 66 S. E. 507; St. Law- 
rence Boom Co. v. Price,- 49 W. Va. 
432, 38 S. E. 526. Wis. — Thiel v. 
John Week Lumb. Co., 137 Wis. 272, 
118 N. W. 802, 129 Am. St. Eep. 1064; 
Dugan V. Knapp, 105 Wis. 320, 81 N. 
W. 412; Skobis V. Ferge, 10? Wis. 122, 
78 N. W. 426. 

Between Assignor and Debtor. — In 
the absence of statute a court of law 
will not even recognize a partial as- 
signment as a defense to an action 
by the assignor against the debtor. 
City of Pueblo v. Dye, 44 Colo. 35, 
96 Pac. 969; Thiel V. John Veek Lumb. 
Co., 137 Wis. 272, 118 N. W. 802, 129 
Am. St. Eep. 1064. 

Severable Demand. — A severable part 
of a claim is assignable. Adler V. Kan- 
sas City, etc. E. Co. 92 Mo. 242, 4 
S. W. 917. 

• 73. U. S. — Shankland V. Mayor of 
Washington, 5 Pet. 390, 8 L. ed. 166; 
Mandeville V. Welch, 5 Wheat. 277, 5 
L ed. 87. Ala. — Kansas City E. Co. 
V. Eobertsor, 109 Ala. 296, 19 So. 432. 
Ark. — Hanks V. Harris, 29 Ark. 323. 
Cal. — Thomac v. Eock Isl. G. & S. 
Min. Co., 54 Cal. 578. Colo. — Chi- 
cago, B. & Q. E. Co. v. Provolt, 42 
Colo. 103, 93 Pac. 1126, 16 L. E. A. 
(N. S.) 587; Barnum V. Green, 13 Colo. 
App 254, 57 Pac. 757; McMurray V. 
Marsh, 12 Colo. App. 95, 54 Pac. 852; 
Snedder V. Harmes, 5 Colo. App. 477, 
39 Pac. 68. D. C. — Sincell V. Davis, 
24 App. Cas. 218. Ga. — Central of 
Georgia E. Co. v. Dover, 1 Ga. App. 240, 
57 S E. 1002. III. — Crosby v. Loop, 
13 111. 625, 14 111. 330. Kan. — Insur- 
ance Co. v. Bullene, 51 Kan. 764, 33 
Pac 467. Ky. — Weinstock v. Bell- 
wood, 12 Bush 139. La. — Eussell v. 
Ferguson, P Mart/ (N. S.) 647. Me. 
Whitcomb v. Waterville, 99 Me. 75, 58 
Atl. 68; Getchell v. Maney, 69 Me. 442. 
Mich. — Milroy v. Spurr, etc. Co., 43 
Mich. 231, 5 N. W. 287. Minn. — Dean 
v. St. Paul & D. E. Co., 53 Minn. 504, 
55 N. W. 658. Mo. — Loomis v. Eob- 



inson, 76 Mo. 488; Love V. Fairfield, 
13 Mo. 300, 53 Am. Dec. 148. N. J.— 
Otis V. Adams, 56 N. J. L. 38, 27 Atl. 
1092. N. C — Boyle v. Bobbins, 71 N. 
C. 130. Ohio. — Pittsburg, etc. E. Co. 
v. Volkert, 08 Ohio St. 362, 50 N. E. 
924; Cincin? ' : etc. E. Co. U.Lima 
R. Supply Co., 27 Ohio C. C. 
807. Pa. — Hopkins v. Stockdale, 117 
Pa. 365, 11 Atl. 368; Fullmer & Co. 
v. Pine Twp., 17 Pa. Co. Ct. 482; Fair- 
grieves v. Lehigh Nav. Co., 2 Phila. 
182, 13 Leg. Int. 356. Vt. — Burditt 
v. Porter, 63 Vt. 296, 21 Atl. 955, 25 
Am. St. Rep. 763; Carter v. Nichols, 
58 Vt. 553, 5 Atl. 197. Wash. — Lewis 
v. Third St., etc. E. Co., 26 Wash. 28, 
66 Pac. 150. 

74. U. S. — Mandeville v. Welch, 5 
Wheat. 277, 5 L. ed. 87; Tyler v. Tuel, 
6 Cranch 324, 3 L. ed. 237; Aetna Ins. 
Co. v. Hannibal E. Co., 3 Dill. 1, 1 
Fed. Cas. No. 96. 111. — Chicago, etc. 
E. Co. v. Nichols, 57 111. 464; Crosby 
v. Loop, 13 111. 625, 14 111. 330; Miller 
v. Bledsoe, 2 HI. 530, 32 Am. Dec. 37. 
Mass. — James v. Newton, 142 Mass. 
366, 8 N. E. 122, 56 Am. Eep. 692. 
N. J. — Sloan V. Sommers, 14 N. J. L. 
509. Ohio. — Stanberry v. Smythe, 13 
Ohio St. 495. Ore. — State Ins. Co. v. 
Oregon E. Co., 20 Ore. 563, 26 Pac. 
838. Pa. — Jermyn v. Moffitt, 75 Pa. 
399; Tairgrieves v. Lehigh Nav. Co., 
2 Phila. 182, 13 Leg. Int. 356. Compare 
Caldwell v. Hartupee, 70 Pa. 74; Budd 
v. Himmelberser, 4 Pa. Dist. 545. 

75. Thiel v. John Week Lumb. Co., 
137 Wis. 272, 118 N. W. 802, 129 Am. 
St. Eep. 1064; Skobis V. Ferge, 102 W:p. 
122, 78 N. W. 426. 

A party entitled to share in the pro- 
ceeds of a no„, in the hands of a 
trustee or depository is entitled to 
maintain a suit at law in the name 
of the trustee. Penobscot E. Co. v. 
Mayo, 60 Me. 306; Caldwell v. Hartu- 
pee, 70 Pa. 74. See also Brown v. 
Dunn, 50 N. J. L. Ill, 11 Atl. 149, 
where a part owner of rights under 
an execution levy compelled the sheriff 
to pay the fund into court. 



vol. in 



ASSIGNMENTS 



107 



Assent By Debtor. — If, however, the debtor assents to the partial 
assignment, the assignee is generally allowed to sue in his own name 
for the portion assigned, without joining the assignor. Whether 
the action is on the original contract or is a new promise implied 
from the assent is not clear. 76 

2. In Equity. — Because of the ability to bring all parties inter- 
ested before the court, equity has generally recognized partial as- 
signments, and allows recovery by the partial assignee where the 
assignor is made a party to the action. 77 The presence of the as- 



76. U. S. — Rogers v. Penobscot Min. 
Co., 83 C. C. A. 380, 154 Fed. 606. 
Cal. — Thomas v. Rock Island Min. Co., 
54 Cal. 578. Colo. — Chicago, B. & Q. 
R. Co. v. Provolt, 42 Colo. 103, 93 Pac. 
1126, 16 L. R. A. (N. S.) 587; French 
v. Deane, 19 Colo. 504, 36 Pac. 609, 24 
L. R. A. 387; Home Ins. Co. v. Atchi- 
son, T. & S. F. R. Co., 19 Colo. 46, 
34 Pac. 281; Smith V. Atkinson, 18 
Colo. 255, 32 Pac. 425; Snedden v. 
Harnes, 5 Colo. App. 477, 39 Pac.. 68. 
D. C. — Westham Granite Co. v. Chand- 
ler, 4 Mackey 32. 111. — Potter v. Gron- 
beck, 117 111. 404, 7 N. E. 586; Miller 
v. Bledsoe, 2 111. 530, 32 Am. Dec. 37. 
Kan. — German Fire Ins. Co. v . Bullene, 
51 Kan. 764, 33 Pac. 467. Ky. — Wein- 
stock v. Bellwood, 12 Bush 139. La. — 
Le Blanc v. East Baton Rouge, 10 Rob. 
25. Mass. — Palmer v. Merrill, 6 Cush. 
282, 52 Am. Dec. 782. Mich. — Mil roy 
V. Spurr Mt. Min. Co., 43 Mich. 231, 
5 N. W. 287. Mo.— Fourth Nat. Bank 
v. Noonan, 88 Mo. 372; Leonard v. 
Missouri, K. & T. R. Co., 68 Mo. App. 
48. Ohio. — Stanberry v. Smythe, 13 
Ohio St. 495. Ore. — McDaniel v. Max- 
well, 21 Ore. 202, 27 Pac. 952, 28 Am. 
St. Rep. 740. Pa. — Ingraham V. Hall, 
11 Serg. & R. 78; Smith v. Stockdale, 
3 Pa. Co. Ct. 113; McCaffery v.' Cas- 
sidy, 3 Phila. 210. S. C — Hughes t>. 
Kiddell, 2 Bay 324. Vt. — Angus v. 
Robinson, 59 Vt. 585, 8 Ail. 497, 5 
Am. Rep. 758. Wis. — Skobis v. Ferge, 
102 Wis. 122, 78 N. W. 426. 

Contra, Insurance Co. of North Amer- 
ica v. Martin, 139 Ind. 317, 37 N. E. 
394; Cochran v. Glover, Morris (Iowa) 
151. 

Recovery After Debtor's Assent. — 
When the debtor has consented to the 
partial assignment the assignee may 
sue at law without joining either the 
assignor or other partial assignee. 
U. S. — Delaware County v. Diebold Safe 
Co., 133 U. S. 473, 10 Sup. Ct. 399, 



33 L. ed. 674. Cal. — Grain V. Aldrich, 
38 Cal. 514, 99 Am. Dec. 423. Hawaii. 
Horner v. Spreckels, 5 Hawaii 430. 
Md. — Harris t*. City of Baltimore, 73 
Md. 22, 17 Atl. 1046, 20 Atl. Ill, 25 
Am. St. Rep. 565, 8 L. R. A. 677. Mass. 
Richmond v. Parker, 12 Met. 48. Mo. 
Fourth Nat. Bank v. Noonan, 88 Mo. 
372; Johnson County V. Bryson, 27 Mo. 
App. 341. Ohio. — Cincinnati, etc. R. 
Co. v. Lima R. Supply Co., 27 Ohio C. 
C. 807. Ore. — Little V. Portland, 26 
Ore. 235, 37 Pac. 911; McDaniel v. 
Maxwell, 21 Ore. 202, 27 Pac. 952, 28 
Am. St. Rep. 740. Pa. — Miller v. 
Insurance Co., 5 Phila. 12. Vt. — Bur- 
ditt v. Porter, 63 Vt. 296, 21 Atl. 955, 
25 Am. Rep. 763. 

In New Jersey it is held that the 
debtor's assent is not necessary in an 
equitable action, and that such assent 
need only be shown in an action at 
law where it creates a novation. Lani- 
gan v. Bradley & C. Co., 50 N. J. Eq. 
2 01, 24 Atl. 505. 

A holder of a partial interest may 
assign it. King v. King, 59 App. Div. 
128, 68 N. Y. Supp. 1089. 

77. U. S. — Fourth St. Nat. Bank 
v. Yardley, 165 U. S. 634, 17 Sup. Ct. 
439, 41 L. ed. 855; Peugh v. Porter, 
112 U. S. 737, 5 Sup. Ct. 361, 28 L. 
ed. 859; Burke v. Child, 21 Wall. 441, 
22 L. ed. 623; In re MacCauley, 158 Fed. 
322; Dulles V. Crippen Mfg. Co., 156 
Fed. 706; The Elmbank, 72 Fed. 610; 
Dowell v. Cardwell, 4 Sawy. 217, 7 
Fed. Cas. No. 4,039. Ark.— Moore v. 
Robinson, 35 Ark. 293. Cal. — Grain 
v. Aldrich, 38 Cal. 514, 99 Am. Dec. 
423. Ga. — Western Union Tel. Co. v. 
Ryan, 126 Ga. 191, 55 S. E-. 21; Rivers 
v. Wright, 117 Ga. 81, 43 S. E. 499; 
Central of Georgia R. Co. v. Dover, 1 
Ga. App. 240, 57 S. E. 1002. HI. — 
Warren v. First Nat. Bank, 149 111. 
9, 38 N. E. 122, 25 L. R. A. 746; Phil- 



Vol. IH 



108 



ASSIGNMENTS 



signor in court may be secured either by a joinder of parties or a bill 
of interpleader. 78 



lips v. Edsall, 127 HI. 535, 20 N. E. 
801; North Chicago St. E. Co. v. Ack- 
ley, 58 HI. App. 572. Ind. — Wood v. 
Wallace, 24 Ind. 226. . Ky. — Columbia 
Finance & T. Co. V. First Nat. Bank, 
116 Ky. 364, 76 S. W. 156. Me.— 
Home v. Stevens, 79 Me. 262, 9 Atl. 
616; National Exc-h. Bank v. McLoon, 
73 Me. 498, 40 Am. Kep. 388; Buck 
v. Swazey, 35 Me. 41, 56 Am. Dec. 681. 
Mass. — Staples v. Somerville, 176 Mass. 
237 57 N. E. 380; Eichardson V. 
White, 167 Mass. 58, 44 N. E. 1072; 
James v. Newton, 142 Miss. 366, 8 
N. E. 122, 56 Am. Rep. 692. Miss. — 
Hutchinson v. Simon, 57 Miss. 628; 
Moody v. Kyle, 34 Miss. 506. N. J. — 
Terney v. Wilson, 45 N. J. L. 282; Todd 
v. Meding, 56 N. J. Eq. 83, 38 Atl. 
349; Lanigan 17. Bradley & C. Co., 50 
N. J. Eq. 201, 24 Atl. 505; Trenton 
Public Schools V. Heath, 15 N. J. Eq. 
22 -N. Y. — Chambers v. Lancaster, 
160 N T. 342, 54 N. E. 707; Whitte- 
more v. Judd L. & S. O. Co., 124 N. Y. 
565 27 N. E. 244, 21 Am. St. Rep. 708; 
Field v. New York. 6 N. Y. 179, 57 
Am. Dec. 435; Chase v. Deering, 104 
App. Div. 192, 93 N. Y. Supp. 434. N. C. 
Etheridge v. Vernoy, 74 N. C. 800. 
Ohio. — Pittsburg, etc. R. Co. v. Vol- 
kert, 58 Ohio St. 362, 50 N. E. 924; 
Tanoyhill v. Burlington & O. R. Co., 
7 Ohio N. P. (N. S.) 487. Ore. — Com- 
mercial Nat. Bank v. Portland, 37 Ore. 
33, 54 Pae. 814, 60 Pac. 563. Pa.— 
Budd v. Himmelberger, 4 Pa. Dist. 545. 
Tenn. — Spring City Bank v. Rhea 
County, 59 S. W. 442; Allison v 
Pearce, 59 S. W. 192. Tex. — Clark 
v. Gillespie, 70 Tex. 513, 8 S. W. 121; 
Texas Western R. Co. v. Gentry, 69 
Tex 625 8 S. W. 98; Harris County 
V. Campbell, 68 Tex. 22, 3 S. W 243 
2 Am. St. Rep. 467; Campbell v. Grant 
Co., 36 Tex. Civ. App. 641, 82 S. W 
794- Harris County v. Donaldson, 20 
Tex. Civ. App. 9, 48 S. W. 791 Va. 
Brooks v. Hatch, 6 Leig> 534. W Va. 
Wamsley V. Ward,- 61 W. Va. 65, 55 
S E. 998. See also """cConaughey v. 
Bennett, 50 W. Va. 172, 40 S. E. 540; 
St. Lawrence Boom Co. i. Price, 49 
W Va. 432, 38 S. E. 526. Wis. — Bail- 
lie' v. Stephenson, 95 Wis. 500, 70 N. 
W. 660. 



Equitable Inter sts. — A cestui que 
trust of real or personal property may 
convey a part interest therein without 
consent of the trustee, and the assignee 
may maintain a suit in equity to en- 
force the execution of the trust. U. S. 
Rogers v. P^obscot Min. Co., 154 Fed. 
606, 83 C. C. A. 380. Ark. — Honnett 
v. Williams, 66 Ark. 148, 49 S. W. 495. 
Me — Buck v. Swazey, 35 Me. 41, 56 
Am. Dec. 681. Mass. — Whipple v. 
Fairchild, 139 Mass. 262, 30 N. E. 89; 
Putnam V. Story, 132 Mass. 205; Pal- 
mer p. Stevens, 15 Gray 343. N. Y. — 
Clark v. Crego, 47 Barb. 599. 

78. Interpleader. — The rights of the 
assignee may be enforced under a 
bill of interpleader. Lanigan V. Brad- 
ley & C. Co., 50 N. J. Eq. 201, 24 
Atl. 505. 

Where all part owners have joined, 
the fact of assignment of a part is 
no defense. Whittemore v. Judd L. 
& S. O. Co., 124 N. Y. 565, 27 N. E. 
244, 21 Am. St. Rep. 708. 

Joinder of Parties. — The assignee 
may join the assignor either as co- 
plaintiff or, i the assignor refuses, as 
a co-defendant. Schilling V. Mullen, 55 
Minn. 122, .*6 N. W. 586, 43 Am. St. 
Rep. 475. And where the fund has 
been brought into court, the court will 
on the debtor's petition adjust all 
claims and divide the fund. James v. 
Newton, 142 Mass. 366, 8 N. E. 122, 
56 Am. Rep. 692. 

Failure To Join Assignor. — The 
failure to make other part owners of 
the chose in action parties to the suit 
is a curable defect, and will not sus- 
tain a judgment of dismissal of the 
bill on its merits. The bill will be re- 
tained until the complainant has had a 
reasonable opportunity to amend and 
bring in the other parties, or to ex- 
plain and excuse their absence under 
the practice of equity in the fedeii.1 
courts. Rogers v. Penobscot Min. Co., 
154 Fed. 606, 83 C. C. A. 380. 

The only remedy left open, to the 
debtor where separate actions are 
brought and later joined is an adjust- 
ment of the costs prior to the consoli- 
dation. Avery v. Popper, 92 Tex. 337, 
50 S. W. 122, 49 S. W. 219, 71 Am. 
St. Rep. 849. 



Vol. Ill 



ASSIGNMENTS 



109 



3. Statutory Modifications. — The distinction between non-recov- 
ery by the partial assignee at law and his recovery in equity is gen- 
erally lost sight of under the codes, 79 and the action is frequently 
viewed as an action at law. 80 It is necessary, however, to make the 
assignor and other partial assignees parties to the proceedings, 81 



79. U. S. — Dela./are County v. Die- 
bold Safe & L. Co., 133 U. S. 473, 10 
Sup. Ct. 399, 33 I. ed. C74 (referring 
to Indiana); Evans f. Durango Land 
& C. Co., 80 Fed. 433, 25 0. C. A. 531, 
49 U. S. App. 320 (referring to Colo- 
rado). Cal. — Grain v. Aldrich, 38 Cal. 
514, 99 Am. -Jee. 423. Ga. — Western 
& A. R. Co. v. Union Inv. Co., 128 
Ga. 74, 57 S. E. 100. Ind. — Earnest 
V. Barrett, 6 Ind. App. 371, 33 N. E. 
635. Minn. — Schilling r. Mullen, 55 
Minn. 122, 46 N. W. 586, 43 Am. St. 
Eep. 475. Tex. — Goldman v. Blum, 58 
Tex. 630; Lanes v. Squyres, 45 Tex. 
383; Stachely v. Peiree, 28 Tex. 328; 
Faulk r. Faulk, 23 Tex. 653; Moore 
v. Minerva, 17 Tex. 2 \ 

As to New York, see Risley v. 
Phenix Bank, 83 Si. Y. 318, 38 Am. 
Rep. 421; Chase t. Deering, 104 App. 
Div. 19;., 93 N. Y. Lupp. 4/54; Chambers 
v. Lancaster, 3 App. Div. 215, 38 N. 
Y. Supp. 253, affirmed, 160 N. Y. 342, 
54 N. E. 707; Lauer v. Dunn, 52 Hun 
191, 5 N. Y. Supp. 161, affirmed, 115 
N. Y. 405, 22 N. E. 270. See also 
Dickinson r. Tysen, 125 App. Div. 735, 
110 N. Y. Supp. 269, to the effect that 
the original relief was never in law 
but in equity, but allowing the court 
in a code actior to summon all parties 
to appear if such is deemed essential 
under N. Y. Code Civ. Proc, § 452. 

Jn Chase V. Deering, supra, the New 
York court refuses to allow the as- 
signee to join the assignor for the sole 
purpose of avoiding a jury trial, (See 
adverse criticise in Dickinson t". Tyson, 
supra.) Nor can the assignor deprive 
the drbtor o' a jury trial by join- 
ing assignees so as to give the action 
an equitable character. Butterlv r. 
Deering, 102 App. Div. 395, 92 N. Y. 
Supp. 675. See also Crouch r. Muller, 
141 N. Y. 495, 36 N. E. 394; Lauer 
V. Dunn, 115 N. Y. 405, 22 N. E. 270; 
Danvers V. Lugar, 30 Misc. 18, 61 N.Y. 
Supp. 778, assuming that originally the 
action by a partial assignee could be 
brought at law. Criticised in Dickin- 
son v. Tysen, and Chambers V. Lan- 
caster, supra, following Risley v. Phenix 



Bank, 83 N. Y. 318, 38 Am. Rep. 421; 
Cook v. Genesee Mut. Ins. Co., 8 How. 
Pr. (N. Y.) 514; McLean r. Fidelity, 
etc. Co., 56 Misc. 623, 107 N. Y. Supp. 
907. 

In England a partial assignment does 
not appear to have been included in 
§ 25, sub-div. 6 of the Judicature Act, 
1873, but the assignee is still reduced 
to an action in equ'ty with the as- 
signor also brought before the court. 
Durham v. Robertson (1898), 1 Q. B. 
Div. 765; Nelson v. Nelson Line, Ltd. 
(1906), 2 K. B. 217. 

80. Delaware County v. Diebold Safe 
& L. Co., 133 U. S. 473, 10 Sup. Ct. 
399, 33 L. ed. 674 (holding the joinder 
of the assignor not always necesMiry 
under the practice in Washington and 
Indiana) ; Dickerson v. Spokane, 26 
Wash. 292, 66 Pac. 381. 

Joinder of Assignor. — On analogy to 
the New York and Wisconsin practice, 
it was held in Oregon that under the 
statute providing that the real party 
in interest may sue an insurance com- 
pany with which -7heat has been in- 
sured for a part of its value, upon 
paying the insurance and becoming 
subrogated to that extent, may sue at 
law tor the negligent destruction by 
fire by joining the assignor. Fire- 
men's Ins. Co. r. Oregon R. Co., 45 
Ore. 53, 76 Pac. 1075, 67 L. R. A. 161. 
In New Jersey under a similar statute 
an opposite result was reached and 
recovery at law was refused. Otis v. 
Adams, 56 N. J. L. 38, 27 Atl. 1092. 

81. N. Y. — Dickinson r. Tysen, 125 
App. Div. 735, 11" N r . Y. Supp. 269. Ore. 
Firemen's Ins. Co. r. Oregon R. Co., 
45 Ore. 53, 76 Pac. 1075, 67 L. R. A. 
161. Wis. — Thiel r. John Week Lumb. 
Co., 137 Wis. 272, lit'. N. W. 802, 129 
Am. St. Rep. 1064; Raesser v. National 
Kxdi. Bank, 112 Wis. .,91, SS N. w. 
618, 88 Am. St. Rep. 979, 56 L. R. A. 
174: Skobis V. Ferge, 102 Wis. 12 

N. W. 426. 

Contra. — But in the absence of 
counterclaims, cr where ', he other claim- 
ants have been paid, or in the absence 
of desire of the debtor, the assignee 



Vol. Ill 



110 



ASSIGNMENTS 



though, with the exception of a few jurisdictions, the debtor's assent 
to the assignment is not essential. 82 

II. PARTIES. — A. At Law. — 1. Action By Assignor. — Joinder 
of Assignee. — Where an assignment does not transfer the legal 
title it is usually held that the assignee need not be made a party 
in an action by the assignor. 83 In suits in equity and actions under 
the modern codes, however, the assignee may be a party where his 
presence is essential to. a proper disposition of the controversy. 84 

2. Action By Assignee. — Joinder of Assignor. — Where the as- 
signment, either under the common law or by statutory provision, 
vests the legal title and the entire beneficial interest in the assignee, 
he may sue in his own name without joining the assignor. 85 



may sue alone. Ind. — Insurance Co. 
of North America V. Martin, 139 Ind. 
317, 37 N. E. 394. N. Y. — Cook v. 
Genesee Mut. Ins. Co., 8 How. Pr. 514. 
Wash. — Dickerson v. Spokane, 26 
Wash. 292, 66 Pac. 381. 

See Southwestern T. Co. v. Tucker 
(Tex. Civ. App.), 98 S. W. 909, where 
the' assignor is allowed to recover the 
portion unassigned without joining the 
partial assignee. 

82. Where such assent was orig- 
inally immaterial in an equity action, 

'it remains so under the code. Grain 
V. Aldrich, 38 Cal. 514, 99 Am. Dec. 
423. 

But in Wisconsin it is beld that in 
the absence of such assent the debtor 
may pay his claim in solido to the 
original creditor without incurring any 
liability towards partial assignees. 
Thiel v. John Week Lumb. Co., 137 
Wis. 272, 118 N. W. 802. See also 
Eaesser V. Nat. Exch. Bank, 112 Wis. 
591, 88 N. W. 618, 88 .on. St. Rep. 
979, 56 L. B. A 174; Dugan V. Knapp, 
105 Wis. 320, 81 N. W. 412; Skobis 
v. Ferge, 102 Wis. 122, 78 N. W. 426. 
But see Baillie v. Stephenson, 95 Wis. 
500, 70 N. W. 660, favoring an equit- 
able assignment of a part of a debt 
regardless of the debtor's assent, and 
relieving it of garnishment. 

83. See supra, I, A, 3. 

84. Conn. — Colburn r. Rossiter, 2 
Conn. F03. 111. —'Phillips v. Edsall, 127 
111. 535, 20 N. E. 801. Me. — Brown 
V. Johnson, 53 Me. 246. Mu. — Coale 
v. Mildred's Admr., 3 Par. & J. 278. 
Minn. — Herrick v. Minneapolis & St. 
L. R. Co., 32 Minn. 435, 21 N. W. 
471. N. Y.— -Wilcox v. Pratt, 125 N. 
Y. 688, 25 N. E. 1091; Mumford v. 



Sprague, 11 Paige 438. N. C. — Boyle 
v. Robbins, 71 N. C. 130. Tex. — Gal- 
veston, etc. R. Co. v. Mathes (Tex. 
Civ. App.), 73 S. W. 411. 

Where the debtor has some defense 
good only against the assignee, the 
equitable owaer, the assignee may be 
brought in as a party. Texas West- 
ern R. Co. V. Gentry, 69 Tex. 625, 8 
S. W. 98. See infra, I, B, 1. 

85. Ark. — Collier v. Trice, 79 Ark. 

414, 96 S. W. 174; St. Louis, etc. R. 
Co. v. Camden Bank, 47 Ark. 541, 1 
S. W. 704. D. C— Young v. Kelley, 
3 App. Cas. 297. Ind. — Colerick v. 
Hooper, 3 Ind. 316, 56 Am. Dec. 505. 
la. — Shambaugh v. Current, 111 Iowa 
121, 82 N. W. 497; Vimont v. Chicago 
& N. W. R. Co., 6*4 Iowa 513, 17 N. 
W. 31, 21 N. W. 9, 69 Iowa 296, 22 
N. W. 906, 28 N. W. 612, 19 Am. u 
Eng. R. Cas. 215. Ky. — Kennedy v. 
Davis, 7 T. B. Mon. 372; Clark v. 
Smith, 7 B. Mon. 273; Snelling V. Boyd, 
5 T. B. Mon. 172; Cobb v. Thompson, 
1 A. K. Marsh. 508; Oldnani V. Rowan, 
3 Bibb 534. Minn. — Davis v. Sutton, 
23 Minn. 307. Neb. — Huddleson v. 
Polk, 70 Neb. 483, 97 N. W. 624; Wood 
v. Garter, 67 Neb. 133, 93 N. W. 158. 
Nev. — Carpenter v. Johnson, 1 Nev. 
331. N. Y. — Allen v. Smith, 16 N. Y. 

415. Ohio. — Allen v. Miller, 11 Ohio 
St. 374. Ore. — Levins v. Stark, 110 
Pac. 980. Wash. — VanHorne v. Wat- 
rous, 10 Wash. 525, 39 Pac. 136. Wis. 
Gunderson v. Thomas, 87 Wis. 406, 58 
N. W. 750. Eng. — Tolhurst v. Asso- 
ciated Portland Cement Mfrs. (1903), 
App. Cas. 414, 72 L. J. K. B. 834. Can. 
Blackley v. Dooley, 18 Out. 381. 

Assignor need not be made a party 
for the purpose of accounting. Alex- 



voi. in 



ASSIGNMENTS 



111 



3. Beneficial Interest in Assignor or Another. — But even though 
the assignee has not the beneficial interest, 80 he may by virtue of his 
legal title sue in his own name, as, for example, an 
assignee for collection merely; 87 or where the chose has been 
assigned as collateral security; 88 or upon some collateral agree- 



ander v. Gloversville, 110 App. Div. 
791, 97 N. Y. Supp. 198. 

A surety on an attachment bond, 
having been obliged to pay it, took an 
assignment thereof, and, in a suit to 
subject the proceeds derived from the 
sale of the attached property, joined 
the assignor. There was no misjoinder 
of plaintiffs, liunneman v. Lowell Inst, 
for Savings, 205 Mass. 441, 91 N. E. 
526. 

86. Rullman V. Rullman, 81 Kan. 
521, 106 Pac. 52; Continental Oil, etc. 
Co. v. Van Winkle, etc. Works (Tex. Civ. 
App.), 131 S. W. 415. 

87. Ariz. — Stroufe v. Soto Bros. & 
Co., 5 Ariz. 10, 43 Pac. 221. Cal.— 
Ingham v. Weed, 48 Pac. 318; Tuller 
V. Arnold, 98 Cal. 522, 33 Pac. 445; 
Gradwohl v. Harris, 29 Cal. 150. Colo. 
Bassett v. Inman, 7 Colo. 270, 3 Pac. 
383; Forsythe v. Byan, 17 Colo. App. 
511, 68 Pac. 1055; Gomer V. Stockdale, 
5 Colo. App. 489, 39 Pac. 355. Ind. 
Butler v. Sturges, 6 Blackf. 186. la — 
Goodnow v. Litchfield, 63 Iowa 275, 
19 N. W. 226; Knadler V. Sharp, 36 
Iowa 232; Cottle v. Cole, 20 Iowa 481. 
Kan. — Walburn v. Chenault, 43 Kan. 
352, 23 Pac. 657. But see Stewart v. 
Price, 64 Kan. 191, 67 Pac. 553, 64 
L. R. A. 5S1. Minn. — Struckmeyer 
v. Lamb, 64 Minn. 57, 65 N. W. 930; 
Anderson V. Beardon, 46 Minn. 185, 48 
N. W. 777; Castner V. Austin, 2 Minn. 
44. Mo. — Guerney v. Moore, 131 Mo. 
650, 32 S. W. 1132; Young v. Hudson, 
99 Mo. 102, 12 S. W. 632; Simmons 
v. Belt, 35 Mo. 461; Beattie v. Lett, 
28 Mo. 596; Peters v. St. Louis, etc. 
R. Co., 24 Mo. 586; Webb V. Morgan, 
14 Mo. 428; Dean v. Chandler, 44 Mo. 
App. 338; Haysler t;. Dawson, 28 Mo. 
App. 531. N. Y. — Meeker v. Claghorn, 
44 N. Y. 349; Curran V. Weiss, 6 Misc. 
138, 26 N. Y. Supp. 8, 56 N. Y. St. 
284; Moore r. Robertson, 25 Abb. N. 
C. 173, 11 N. Y. Supp. 798; 17 N. Y. 
Supp. 554, 43 N. Y. St. 245. Wis. — 
Hankwitz v. Barrett, 143 Wis. 639, 128 
N. W. 430. 

The assignment being absolute, the 



assignee is as to the debtor the real 
party in interest, though the assignor 
is to receive the proceeds. Sheridan V. 
New ¥ork, 68 N. Y. 30; Walcott V. 
Hilman, 23 Misc. 459, 51 N. V. Supp. 
358; Cunningham P. Cohen, 14 Misc. 
12, 35 N. Y. Supp. 125, 69 N. Y. St. 
498; Allen v. Brown, 51 Barb. 86, 44 
N. Y. 228. 

An assignee who is a mere attorney 
to collect and apply the proceeds to 
paying off debts of the assignor in 
the attorney's hands for collection is 
the real party in interest, and may sue 
alone. Wynne V. Heck, 92 N. C. 414. 
Contra. — Where assignee, although he 
has the legal title, is to account for 
the proceeds, he is not the real party 
in interest and cannot sue in his own 
name. Ala. — Pleasants v. Erskine, 82 
Ala. 386, 2 So. 122. Conn. — Gaffney 
v. Tammany, 72 Conn. 701, 46 Atl. 156; 
Metropolitan Life Ins. Co. V. Fuller, 
61 Conn. 252, 23 Atl. 193, 29 Am. St. 
Rep. 196. Neb. — Hoagland V. Van Et- 
ten, 22 Neb. 681, 35 N. W. 869, 23 
Neb. 462, 36 N. W. 755. N. C — 
Abrams V. Cureton, 74 N. C. 523. 

88. Cal. — Wetmore v. San Francisco, 
44 Cal. 294; Warner v. Wilson, 4 Cal. 
310. Colo. — Butler t;. Rockwell, 14 
Colo. 125, 23 Pac. 462. D. C. — Mc- 
Cormick v. District of Columbia, 7 Mac- 
key 534. Minn. — Castner v. Austin, 
2 Minn 32. N. H. — Barnes v. Union 
Mut. F. Ins. Co., 45 N. H. 21. N. Y. — 
Lawler V. Nat. Life Association, 83 Hun 
393, 31 N. Y. Supp. 875, 64 N. Y. St. 
785; Carnes V. Piatt, 6 Robt. 270. 
Tex. — East Texas F. Ins. Co. v. Coffee, 
61 Tex. 287; Riggins V. Sass (Tex. Civ. 
App.), 127 S. W. 1064. W. Va. — 
Bentley V. Standard Fire Ins. Co., 40 
W. Va. 729, 23 S. E. 584. Wis. — 
Plant's Mfg. Co. V. Falvey, 20 Wis. 
200. 

Where the assignee can sue in his 
own name only when he has the en- 
tire beneficial interest, he cannot sue 
on an account assigned as collateral 
security unless a sum remains due 



vol. in 



112 



ASSIGNMENTS 



ment, 89 even though the plaintiff paid nothing by way of consideration. 
4. Assignee As Real Party in Interest. — Where the assignment 
does not pass the legal title to the chose, but only the beneficial 
interest, it is held, in most states, that the equitable assignee may, 
under the statutes, sue in his own name as the real party in interest, 
without joining the assignor; 90 in other states, that the assignor 
must be a party to the action, as the legal title did not pass by the 



greater than the amount assigned. New 
Haven City Bank v. Thorp, 78 Conn. 
211, 61 Atl. 428. 

Contra. — The assignor must be joined 
■with the assignee, as he is a party in 
interest. Cal. — Cerf v. Ashley, 68 Cal. 
419, 9 Pae. 658, holding that assignor 
may ioin with assignee. N. J. — Chew 
V. Brumagim, 21 N. J. Eq. 520. N. Y. 
Western Bank V. Sherwood, 29 Barb. 
383; Boynton V. Clinton & E. Mut. Ins. 
Co., 16 Barb. 254. 

Under the Judicature Act of 1873, 
the assignment must be absolute to en- 
title the assignee to sue in his own 
name, and so an assignment by way of 
security is insufficient. Durham v. Rob- 
ertson (1898), 1 Q. B. Div. 765, 67 L. 
J. Q. B. 484; Hostrawser t>. Kobinson, 
23 U. C. C. P. 350. 
• 89. Idaho. — Brumback t. Oldham, 1 
Idaho 709. Ind. — Pugh v. Miller, 126 
Ind. 189, 25 N. E. 1040. la.— Ward- 
ner v. Jack, 82 Iowa 435, 48 N. W. 
729; Whittaker V. Johnson County, 10 
Iowa 161. Me. — Norris V. Hall, 18 Me. 
332. Mo. — Wolff V. Matthews, 39 Mo. 
App. 376. N. Y. — Stone v. Frost, 61 
N. Y. 614; Richardson V. Mead, 27 
Barb. 178; Arthur V. Brooks, 14 Barb. 
533. Ore. — Gregoire v. Rourke, 28 
Ore. 275, 42 Pac. 996; Dawson v. 
Pogue, 18 Ore. 94, 22 Pac. 637, 6 L. R. 

A - 176 - • , ^. • 

If one partner has assigned his in- 
terest to his co-partner, though for a 
nominal consideration, the action can- 
not be brought in the name of both 
partners. Clark v. Downing, 1 E. D. 
Smith (N. Y.) 406. 

Agreement Not Amounting to As- 
signment. — Where an agreement is 
made with a creditor to whom an ac- 
count is assigned that if he collect it 
he may apply a portion of it to the 
indebtedness and return the remainder 
to the assignor, but if nothing is col- 
lected no credit is to be given, the 
assignee cannot sue in his own name, 
because there is no assignment, or par- 
tial assignment, but merely an agree- 

Vol. Ill 



ment to pay the debt out of a partic- 
ular judgment, provided the plaintiff's 
name is used and a recovery had. Rit- 
ter v. Stevenson, 7 Cal. 388. 

See also as to agreement with attor- 
ney to deduct his fee from amount 
collected. 111. — Phillips v. Edsall, 127 
111. 535, 20 N. E. 801. Minn. — Her- 
rick v. Minneapolis i t. L. R. Co., 
32 Minn. 435, 21 N. W. 471. Tex. — 
Galveston, etc. R. Co. v. Mathes (Tex. 
Civ. App.), 73 S. W. 411. 

90. U. S. — Davis v. Bilsland, 18 
Wall. 659, 21 L. ed. 969 (as to as- 
signee of a mechanic's lien); Edmunds 
v. Illinois Cent. R. Co., 80 Fed. 78; 
Robinson v. Memphis R. Co., 16 Fed. 
57. Ark. — Heartman v. Franks, 36 
Ark. 501. Cal. — Quan Wye v. Chin Lin 
Hee, 123 Cal. 185, 55 Pac. 783; Wing 
Ho v. Baldwin, 70 Cal. 194, 11 Pac. 
565; Cheney v. Newberry, 67 Cal. 126, 
7 Pac. 445; McLaren v. Hutchinson, 
22 Cal. 187, 83 Am. Dec. 59; Boyce v. 
Gordon, 11 Cal. App. 771, 106 Pac. 264. 
Colo. — Perkins v. Peterson, 2 Colo. 
App. 242, 29 Pac. 1135. Fla. — Robin- 
son v. Nix, 22 Fla. 321. Ind. — Sinker 
v. Kidder, 123 Ind. 528, 24 N. E. 341; 
Patterson v. Crawford, 12 Ind. 241. la. 
Barthol V. Blakin, 34 Iowa 452; Youn- 
ker «. Martin, 18 Iowa 143 (dictum) ; 
Conynham V. Smith, 16 Iowa 471; Shep- 
ard v. Ford, 10 Iowa 502; State V. But- 
terworth, 2 Iowa 158. Minn. — Rus- 
sell v. Minnesota Outfit, 1 Minn. 162. 
Mo. — Turner v. Hayden, 33 Mo. App. 
15, suit must be brought in name of 
real party in interest. Neb. — Weir 
V. Anthony, 3C Neb. 396, 53 N. W. 
206. N. Y. — Oneida Bank V. Ontario 
Bank, 21 N. Y. 490; Hastings V. Mc- 
Kinley, 1 E. D. Smith 273. See Van 
Vechten v. Graves, 4 Johns. 403. N. 
C. — Thompron v. Osborne, 152 N. C. 
408, 67 S. E. 1029. Ohio. — Hall v. 
Cincinnati R. Co., 1 Disn. 58. S. C — 
Childs v. Alexander, 22 S. C. 169. 
Tex. — East Texas Fire Ins. Co. v. Cof- 
fee, 61 Tex. 287; Galveston, etc. E. 
| Co. V. Freeman, 57 Tex. 156; Bullion 



ASSIGNMENTS 



113 



assignment. 91 The statutes of some of these states expressly or 
impliedly, require that the assignor be made a party. 92 



v. Campbell, 27 Tex. 653; Hopkins v. 
Upshur, <?0 Tex. 89, 70 Am. Dec. 375; 
Devine V. Martin, 15 Tex. 26; Ogden 
p. Slade, 1 Tex. 13. Wis. — Chase v. 
Dodge, 111 Wis. 70, 86 N. W. 548. 

The real owner of a promissory note 
may sue thereon in his own name with- 
out joining the payee, though he holds 
only by delivery and not by written 
assignment. Love v. Cahn, 93 Ark. 215, 
124 S. W. 259. 

But where there is only a partial as- 
signment the assignee cannot sue 
alone; the owners of the entire interest 
must sue. State Ins. Co. P. Oregon E. 
Co., 20 Ore. 563, 26 Pac. 838. 

91. Assignor Necessary Party. — 
Ark. — Boqua v. Marshall, 88 Ark. 373, 
114 S. W. 714; St. Louis, etc. R. Co. 
r. Camden Bank, 47 Ark. 541, 1 S. W. 
704. Ky. — Hayes Creek Coal Co. V. 
Eagle Coal Co., 32 Ky. L. Eep. 888, 
107 S. W. 297; Hicks v. Doty, 4 Bush 
420; Lytle v. Lytle, 2 Met. 127; Gill 
P. Johnson, 1 Met. 649; Craig v. John- 
son, 3 J. J. Marsh. 573; Young v. 
Rodes, 5 T. B. Mon. 498; Pember- 
ton p. Riddle, 5 T. B. Mon. 401; Jar- 
man v. Howard, 3 A. K. Marsh. 3S3; 
Lemmon r. Brown, 4 Bibb 308; Allen 
v. Crockett, 4 Bibb 240; Neyfong v. 
Wells, Hard. 561; Colvin v. Newell, 
8 Ky. L. Rep. 959; Maynard v. Cas- 
sady, 4 Ky. L. Rep. 836. See Free- 
bach v. Brunker, 5 Ky. L. Rep. 314. 
Ohio. — Stevens v. Swallow, 2 Ohio 
Dec. (Reprint) 305. 

Assignor must be made a party de- 
fendant where assignment is not by 
indorsement. Keller t. Williams, 49 
Ind. 504; Swails v. Coverdill, 17 Ind. 
337; St. John v. Hardwick, 11 Ind. 
251 (holding that where assignor is 
dead, personal representative must be 
made a party); Stewart P. Fralich, 14 
Ind. App. 260, 42 N. E. 951; Watson 
v. Conwell, 3 Ind. App. 518, 30 N. 
E. 5. 

A surviving partner who assigns a 
partnership claim is a necessary party 
in an action by the assignee, but the 
representatives of the deceased part- 
ners are not necessary parties. Will- 
son V. Nicholson, 61 Ind. 241. 

If assignor is omitted, demurrer for 
defect of parties will be sustained. 



Gordon v. Carter, 79 Ind. 386; Hubbell 
v. Skiles, 16 In \ 138. 

Manner of assignment, whether legal 
or equitable, goes -iot to the cause of 
action, but to the question whether 
or not the assignor should be joined. 
Singleton P. O'Blenis, 125 Ind. 151, 25 
N. E. 154; Treadway P. Cobb, 18 Ind. 
36; Earnest P. Barrett, 6 Ind. App. 371, 
33 N. E. 635. 

Where one who has assigned his in- 
terest is before the court urging the 
assignment, both assignor and assignee 
should be made parties pi*>intiff. Swift 
v. Ellsworth, 10 Ind. 205, 71 Am. Dec. 
316. 

In an action by the assignee of a 
promissory note against the maker it 
was held proper to join the payee as 
defendant. Mewherter v. Price, 11 Ind. 
199. 

Where one of two persons having 
a cause of action assigned his in- 
terest to the other, who sued with- 
out joining the assignor, the non- 
joinder was waived, under the code, 
by failure to raise the objection. 
Abbe v. Clark, 31 Barb. (N. Y.) 238. 

92. Ark. — "Where the assignment 
of a thing in action is not authorized 
by statute, the assignor must be t. 
party, as plaintiff or defendant." 
Kirby's Dig., § 600; Boqua v. Marshall, 
88 Ark. 373, 114 S. W. 714; St. Louis, 
etc. R. Co. P. Camden Bank, 47 Ark. 
541, 1 S. W. 704. Ind. — Rev. Stat., 
1894, § 277 (where the assignment of 
a contract is otherwise than by in- 
dorsement the assignor is a necessary 
party); Singleton v. O'Blenis, 125 Ind. 
151, 25 N. E. 154; Gordon P. Carter, 
79 Ind. 386 (complaint demurrable for 
nonjoinder of assignor); Swails t. Cov- 
erdill, 17 Ind. 337; Hubbell v. Skiles, 
16 Ind. 138; St. John P. Hardwick, 11 
Ind. 251; Stewart P. Fralich, 14 Ind. 
App. 260, 42 N. E. 951; Earnest V. 
Barrett, 6 Ind. App. 371, 33 N. E. 635; 
Watson v. Conwell, 3 Ind. App. 518, 30 
N. E. 5. Ky. — Hayes Creek Coal Co. 
r. Eagle Coal Co., 32 Ky. L. Rep. 888, 
107 S. W. 297; Craig V. Johnson, 3 
J. J. Marsh. 573; Pemberton v. Riddle, 
5 T. B. Mon. 401; Jarnian P. Howard, 

3 A. K. Marsh. 383; Lemmon P. Brown. 

4 Bibb 308; Allen v. Crockett, 4 Bibb 

Vol. Ill 



114 



ASSIGNMENTS 



5. Trustee of Express Trust. — Where the code requires the real 
party in interest to sue in his own name, trustees of an express 
trust are usually excepted from the provision, and may sue in their 
own name without joining the beneficiary. 93 

6. In Partial Assignment. — As already pointed out, an assignee 
under a partial assignment has not, apart from statute, any reme- 
dies at law. 94 Where by statute the real party in interest may sue 
in his own name, an assignee under a partial assignment may make 
the assignor a party plaintiff with himself in an action J;o enforce 
the assigned chose. 95 But if the debtor has consented to the partial 
assignment the assignee may sue him for such part without making 
the assignor a party to the action. 96 



240. Va. — Baily's Exr. V. Warren, 80 
Va. 512. 

See supra, I, C, 4. 

93. la. — Goodnow v. Litchfield, 63 
Iowa 275, 19 N. W. 226. Kan. — Wal- 
burn v. Chenault, 43 Kan. 352, 23 Pac. 
657. Minn. — Murphin v. Scovell, 44 
Minn. 530, 47 N. W. 256; Cremer v. 
Wimmer, 40 Minn. 511, 42 N. W. 467; 
Lake v. Albert, 37 Minn. 453, 3 N. W. 
177; St. Anthony Mill Co. v. Vandall, 
1 Minn. 246. Mo. — Guerney v. Moore, 
131 Mo. 650, 32 S. W. 1132; Dean v. 
Chandler, 44 Mo. App. 338; Haysler v. 
Dawson, 28 Mo. App. 531. Nev.— 
Carpenter v. Johnson, 1 Nev. 331. N. 
y. — Cummins v. Barkalow, 1 Abb. 
Dec. 479; Allen v. Brown, 51 Barb. 86, 
44 N. Y. 228; Lewis v. Graham, 4 Abb. 
Pr. 106! Wis. — Eobbins v. Deverill. 
20 Wis. 142; Kimball V. Spicer, 12 Wis. 
668. 

Trustee cannot release the right or 
discontinue the action. Ex parte Ran- 
dall, 149 Ala. 640, 42 So. 840; Foster 
v. Central Nat. Bank, 183 N. Y. 379, 
76 N. E. 338. 

94. See cases cited under I, D, 
supra. 

95. U. S. — Evans v. Durango Land 
& C. Co., 80 Fed. 433, 49 U. S. App. 
320, 25 C. C. A. 531, the assignee of 
part of a debt may, in conjunction with 
his assignor, recover the entire debt. 
Cal. — Grain V, Aldrich, 38 Cal. 514, 99 
Am. Dec. 423. Cxmn. — Hamilton v. 
Lamphear, 54 Conn. 237, 7 Atl. 19. 
Ind. — Singleton V. O'Blenis, 125 Tnd. 
151, 25 N. E. 154; Earnest v. Barrett, 
6 Ind. App. 371, 33 N. E. 635. Mich. 
Wood v. Metropolitan I Ins. Co., 96 
Mich. 437, 56 N. W. 8, the assignee 
of part of a policy of insurance must 



be joined in an action thereon. N. Y. 
Compare Chambers v. Lancaster, 160 N. 
Y. 342, 54 N. E. 707, affirming 3 App. 
Div. 215, 38 N. Y. Supp. 253. 

"There can be but one action upon 
a single demand. The parties in- 
terested must join as plaintiffs, or 
those not joined must be made defend- 
ants, in the action, so that the whole 
controversy may be determined in one 
suit, unless the creditor agrees to a 
severance, as by the acceptance of an 
order, or otherwise. The assignee of 
a part interest cannot be permitted to 
carve out of the entire demand the 
amount of his claim, leaving other par- 
ties to bring separate actions for their 
several interests. See Field v. Mayor, 
6 N. Y. 188, and Bank v. McLoon, 73 
Me. 510, where the questions involved 
herein are fully discussed. The case 
of bank checks is distinguishable, for 
manifest reasons." Dean v. St. Paul 
& D. B. Co., 53 Minn. 504, 55 N. W. 
628. 

In New York an assignee of part 
of a chose in action may sue thereon 
in his own name. Risley V. Phenix 
Bank, 83 N. Y. 318, 38 Am. Rep. 421; 
Cushman v. Family Fund Soc, 13 N. 
Y. Supp. 428, 36 N. Y. St. 856. See 
also Danvers v. Lugar, 30 Misc. 98, 
61 JM. Y. Supp. 778; Penhollow v. 
Lawyers Title Ins. Co., 63 N. Y. Supp. 
390. See further, I, D, supra. 

96. U. S. — Delaware County v. Die- 
bold Safe & L. Co., 133 U. S. 473, 10 
Sup. Ct. 399, 33 L. ed. 674. Cal. — 
Grain V. Aldrich, 38 Cal. 514, 99 Am. 
Dec. 423. Mass. — Richmond v. Parker, 
12 Met. 48. Ore. — Little V. Portland., 
26 Ore. 235, 37 Pac. 911. 



vol. in 



ASSIGNMENTS 



115 



7. Misjoinder of Assignor. — Where the assignor has parted with 
all interest both legal and equitable, he cannot be joined with the 
assignee, and a demurrer for his misjoinder will be sustained." 

Joint Assignees. — In an action to enforce a debt assigned jointly 
to several, all should join. 98 

B. In Equity. — 1. In General. — In suits in equity, whether by 
the assignor or by the assignee, all persons whose interests will be 
affected by the decree should be made parties, and a court may under 
the general rules of equity practice order the necessary parties to be 
brought in. Thus, if there remains in the assignor any interest, right 
or liability whatever he is a proper and usually a necessary party ." It 



97. In an action by the assignee 
against the debtor who refuses pay- 
ment on the ground that he has paid 
the assignor, the assignee cannot join 
the debtor and assignor to seek an 
accounting to ascertain the rights and 
liabilities of the parties and get judg- 
ment against the one who is liable, 
because his remedy is either on the as- 
signed claim against the debtor or 
against the assignor for a breach of 
warranty. Allen v. Smith, 16 N. Y. 
415; Alexander V. Gloversville, 110 
App. Div. 791, 97 N. Y. Supp. 198, 
(demurrer for misjoinder): Camblos v. 
Butterfield, 15 Abb. Pr. N. S. (N. Y.) 
197. 

98. Allard V. Orleans Nav. Co., 14 
La. 27; Abbe v. Clark, 31 Barb. (N. 
Y.) 238 (nonjoinder must be taken 
advantage of by pleading or notice); 
Atwood V. Norton, 27 Barb. (N. Y.) 
638. 

99. U. S. — Hubbard V. Manhattan 
Trust Co., 87 Fed. 51, 57 U. S. App. 
730, 30 C. C. A. 520 (holding also 
that the assignor may be made a party 
by amendment) ; Cooke v. Bidwell, 8 
Fed. 452. Ind. — Insurance Co. of 
North America v. Martin, 139 Ind. 317, 
37 N. E. 394 (where the part of the 
claim retained by the assignor has 
been paid, the assignor is not a neces- 
sary party); Earnest v. Barrett, 6 Ind. 
App. 371, 33 N. E. 635. Mass. — Hun- 
neman v. Lowell Inst, for Sav., 205 
Mass. 441, 91 N. E. 526; Montague v. 
Lobdell, 11 Cush. Ill; Hobart v. An- 
drews, 21 Pick. 526. Minn. — Schilling 
v. Mullen, 55 Minn. 122, 56 N. W. 586, 
43 Am. St. Eep. 475 (holding that the 
assignor who refuses to join as plain- 
tiff should be made a defendant); Dean 
V. St. Paul & D. R. Co., 53 Minn. 504, 



55 N. W. 628. N. J. — Miller v. Hen- 
derson, 10 N. J. Eq. 320. N. Y. — 
Miller v. Bear, 3 Paige 466; Cook v. 
Genesee Mut. Ins. Co., 8 How. Pr. 514; 
Corning v. Roosevelt, 25 Abb. N. C. 
220, 18 Civ. Proc. 399, 11 N. Y. Supp. 
758. N. C. — Thompson v. McDonald, 
22 N. C. 477; Smith v. Garey, 22 N. 
C. ^2. Tenn. — Wilson V. Davidson 
County, 3 Tenn. Ch. 536. Tex. — East 
Texas F. Ins. Co. v. Coffee, 61 Tex. 
287. 

The vendors of land must be made 
parties to a suit against the vendee 
to enforce the lien of the purchase 
money on the land, and so where bonds 
or notes given for the price of the 
land have been assigned and there re- 
mains a right or liability in the as- 
signor which may be affected by the 
decree. Plowman v. Riddle, 14 Ala. 
169, 48 Am. Dec. 92; Betton V. Wil- 
liams, 4 Fla. 11. 

A trustee holding for the separate 
use of a married woman, and for cer- 
tain contingent trusts, is a necessary 
party in a bill by the married woman, 
although he has executed a deed pur- 
porting to assign his whole interest to 
her. Thompson V. McDonald, 22 N. C. 
477. 

The insolvency of the assignor does 
not excuse the failure to make him a 
party. Betton r. Williams, 4 Fla. 11. 

In an action by the equitable as- 
signee, the assignor must be made a 
party to the suit because he has the 
legal title. Craig V. Johnson, 3 J. J. 
Marsh. (Ky.) 573; Neyfong v. Wells, 
Hard. (Ky.) 561. But in New Mexico 
Land Co. v. Elkins, 20 Fed. 545, the 
assignor did not have to be joined 
though he retained the legal title. 

vol. in 



116 



ASSIGNMENTS 



is held in some states that an assignor, retaining the legal title to 
the chose assigned, must be made a party either as plaintiff or de- 
fendant, notwithstanding he has no beneficial interest. 1 Some cases 
have held that because convenience is promoted or additional pro- 
tection is afforded the defendant, the joinder of assignee and as- 
signor is not objectionable. 2 And some courts hold that an assignor 
is a proper party in any case where a bill is filed by an assignee. 3 
2. Suit By Assignor. — Joinder of Assignee. — If the rights of the 
assignee will be affected by the suit in equity brought by the as- 



1. Ala. — Broughton v. Mitchell, 64 
Ala. 210. Ark. — Boles v. Jessup, 57 
Ark. 469, 21 S. W. 880, assignor may 
be made a party after the action is 
brought. Ind. — Elderkin v. Shultz, 2 
Blackf. 345. But see Blair v. Shelby 
County Agr., etc. Assn , 28 Ind. 175. 
Ky. — Craig v. Johnson, S J. J. Marsh. 
573; Young V. Eodes, 5 T. B. Mon. 
498; Gatewood V. Eucker, 1 T. B. Mon. 
21; Bradley v. Morgan, 2 A. K. Marsh. 
369; 'Allen V. Crockett, 4 Bibb 240. N. 
C — Jones v. Carter, 73 N. C. 148; ^xc- 
Kinnie v. Eutherford, 21 N. C. 14. Va. 
Corbin V. Emmerson, 10 Leigh 663, 
holding that in every case of a bill 
in equity filed by an assignee the as- 
signor is a proper and necessary party. 
But see James Eiver, etc. Co. v. Little- 
john, 18 Gratt. 53. Eng. — Cathcart V. 
Lewis, 3 Bros. Ch. 516, 29 Eng. Ee- 
print 676; 1 Ves. Jr. 463, 30 Eng. Be- 
print 439; itay V. Fenwick, 3 Bros. 
Ch. 25, 29 Eng. Eeprint 387. 

A title bond for land being assigned 
by the obligee to another who assigned 
it to a third party, both the inter- 
mediate assignee and obligor are neces- 
sary parties in a suit thereon for spe- 
cific performance. Hancock v. Beck- 
ham, 5 Litt. (Ky.) 135. See also 
Madeiras V. Catlett, 7 T. B. Mon. (Ky.) 
475. Where a vendor sues a remote as- 
signee to enforce a vendor's lien on 
land successively assigned, the origin 1 
vendee is a necessary party and the 
intermediate assignees proper parties. 
Wickliffe v. Clay, 1 Dana (Ky.) 585. 

Where an assignee of an insurance 
policy, after loss, seeks to have the 
policy reformed so as to conform to 
the intention of the parties, the as- 
signor is a necessary party. Sykora 
r. Forest City Mut. Ins. Co., 7 Ohio 
Dec. (Eeprint) 372, 2 Cine. Law Bui. 
223. 



2. Gunter V. Williams, 40 Ala. 561; 
Blevins v. Buck, 26 Ala. 292; Plowman 
v. Eiddle, 14 Ala. 169, 48 Am. Dec. 
92; Wilson V. Davidson County, 3 Tenn. 
Ch. 536. 

Where one who has assigned his in- 
terest in a claim is before the court 
urging the assignment, both the assignor 
and assignee should be made parties 
plaintiff to fully protect the obligor, 
as intended by Eev. St., 1881, §276. 
Singleton v. O'Blenis, 125 Ind. 151, 25 
N. E. 154. 

Joinder of assignee and assignor is 
proper where the suit is on a claim 
as to which there has been, at least, 
even if it does not continue, a privity 
between each of them and the defend- 
ant. Thompson V. McDonald, 22 N. C. 
477. 

A bill filed in the names of Doth 
assignor and assignee, in a suit to en- 
force a chose, is a demand between 
them of the rights of the assignee. 
Eyan r. Anderson, 3 Madd. 174, 56 
Eng. Eeprint 474, quoted in McLane V. 
Eiddle, 19 Ala. 180. Contra, Fulham V. 
McCarthy, 1 h. L. Cas. 703, 9 Eng. 
Eeprint 937, holding under the Chan- 
cery rule forbidding the joining, as 
plaintiffs, parties whose interests are 
opposed; that the joining of the as- 
signor and r.ssignee of an equitable in- 
terest is improper, and that the va- 
lidity of the assignment cannot be put 
in issue. 

3. Ala. — Broughton v. Mitchell, 64 
Ala. 210; Blevins v. Buck, 26 Ala. 292. 
N. Y. — Congrega J ion Shomri Laboker 
Anshe Sakoler V. Sindrack, 15 App. 
Div. 82, 44 N. Y. Supp. 295. N. C. — 
Thompson V. McDonald, 22 N. C. 477. 
Tenn. — Wilson V. Davidson County, 3 
Tenn. Ch. 536. Va. — Corbin, v. Em- 
merson, 10 Leiga 663. 



Vcl. HI 



ASSIGNMENTS 



117 



signor, the assignee is a proper and, sometimes, a necessary party 
plaintiff. 4 

3. Suit Against Assignor. — In any suit brought against the as- 
signor for the purpose of interfering with the enforcement of the 
rights represented by the chose assigned, the assignee is a neces- 
sary party. 6 

4. Suit By Assignee. — Joinder of Assignor. — a. Absolute Assign- 
ment. — By the weight of authority, where an assignment is abso- 
lute and unconditional, transferring the entire equitable interest, and 
the extent and validity of the assignment are not questioned, and 
no liability remains in the assignor to be affected by the decree, the 
assignor need not be made a party to a bill filed by the assignee. 6 



4. Proper Party. — Showell v. Wink- 
up, 60 L. T. N. S. (Eng.) 389. 

Where one of the parties to a joint 
enterprise transfers an interest in it 
to another, his right to proceed in 
equity to enforce his rights will not 
be affected thereby, and the assignee 
is a proper, if not a necessary, party 
to such action when the situation is 
complicated and an adjustment of the 
rights of all the parties is necessary. 
Wilcox v. Pratt, 125 N. Y. 688, 25 N. 
E. 1091. 

Necessary Party. — Coale v. Mildred's 
Admr., 3 Har.&J. (Md.) 278; Ridgway 
v. Bacon, 72 Hun 211, 25 N. Y. Supp. 
651, 55 N. Y. St. 345 (where the 
claim has been assigned as collateral 
security). 

Where an obligor, as security for a 
debt, assigns a note with a mortgage 
to secure the same, the assignee is a 
necessary party to a bill to redeem, 
though he afterwards makes an abso- 
lute assignment of the mortgage to 
another party. Hopkins v. Roseclare 
Lead Co., 72 111. 373; Brown f. John- 
son, 53 Me. 246; Hood v. Hood, 85 
N. Y. 561. 

5. Cal. — Johnson »;. Kirby, 65 Cal. 
482, 4 Pac. 458. Ky. — Triplett v. 
Cox, 7 T. B. Mon. 190 (bill for set-off) ; 
McCormick v. McCormick, 9 Ky. L. 
Rep. 519, 5 S. W. 573. N. Y. — Mahr 
v. Norwich Union F. Ins. Co., 127 N. Y. 
452, 28 N. E. 391, 40 N. Y. St. 218; 
Mumford v. Sprague, 11 Paige 438 (suit 
to stay proceedings on judgment) ; 
Brockway V. Copp, 3 Paige 539; Chase 
v. Chase, 1 Paige 197 (bill to stay the 
suit) . 

6. U. S. — Boon's Heirs r. Chiles, 8 
Pet. 532, 8 L. ed. 1034; Fidelity, etc. 
Co. V. Fidelity Trust Co., 143 Fed. 152; 



O'Shaugnessy t;. Humes, 129 Fed. 953; 
New Mexico Land Co. r. Elkins, 20 
Fed. 545; Trecothick V. Austin, 4 
Mason 16, 24 Fed. Cas. No. 14,164; 
Henry v. Francestown Soapstone Stove 
Co., 2 B. & A. Pat. Cas. 221, 11 Fed. 
Cas. No. 6,382. Ala. — Walker r. Mo- 
bile Bank, 6 Ala. 452. But see Brough- 
ton 17. Mitchell, 64 Ala. 210. D. C.— 
Young v. Kelly, 3 App. Cas. 296. Fla. 
Sammis V. Wightman, 31 Fla. 45, 12 
So. 536; Robinson v. Springfield Co., 
21 Fla. 203; Betton v. Williams, 4 Fla. 
11. IU. — Gleason Mfg. Co. v. Hoff- 
man, 168 111. 25, 48 N. E. 143; Dixon 
v. Buell, 21 111. 203. Ind. — Garrett 
v. Puckett, 15 Ind. 485; Colerick t;. 
Hooper, 3 Ind. 316, 56 Am. Dec. 505, 
where the assignee with the legal title 
sued for specific performance. Ky. — 
Anderson's Admr. V. Wells, 6 B. Mon. 
540; Kennedy v. Davis, 7 T. B. Mon. 
372; Cobb v. Thompson, 1 A. K. Marsh. 
507; Lemmon V. Brown, 4 Bibb 308. 
Me. — Moor v. Veazie. 32 Me. 343, 52 
Am. Dec. 655; Miller V. Whittier, 32 
Me. 203; Haskell v. Hilton, 30 Me. 419. 
Md. — Grand United Order v. Merk- 
lin, 65 Md. 583, 5 Atl. 544; Coale P. 
Mildred's Admr., 3 Har. & J. 278. 
Mass. — Allyn v. Allyn, 154 Mass. 570, 
28 N. E. 779; Currier V. Howard, 14 
Gray 511; Montague V. Lobdell, 11 
Cush. Ill; Haskell v. Codman, 8 Met. 
536; Hodges r. Saunders, 17 Pick. 470; 
Ensign v. Kellogg, 4 Pick. 1. Mich.— 
Beach V. White, Walk. 495; Morey f. 
Forsvth, Walk. 465. Miss. — Everett 
V. Winn, Smed. & M. Ch. 67. N. J.— 
King v. Berry, 3 N. J. Eq. 44; Chester 
V. King, 2 N. J. Eq. 405; Bruen i\ 
Crane, 2 N. J. Eq. 347; Vrelland V. 
Loubat, 2 N. J. Eq. 104. N. Y. — Allen 
v. Smith, 16 N. Z. 415; Connecticut 

vol. m 



118 



ASSIGNMENTS 



b. Assignment Not Absolute. — Where the assignment, however, is 
not absolute, 7 or where there is a controversy between the assignor 
and assignee touching the assignment, 8 the assignor should be made 
a party for the protection of all. 

C. Amendments as to Parties. — Generally, amendments will be 
allowed to bring before the court all persons having an interest in 
the subject-matter of the litigation and whose presence is necessary 
for a complete and final determination of the controversy, or strik- 
ing out disinterested parties. 9 Thus, an amendment has been al- 
lowed substituting the holder of the legal title as plaintiff for the 
use of the beneficiary; 10 striking out the assignor where the 
assignee has the legal title or is entitled to sue in his own 



Mut. L. Ins. Co. v. Cornwell, 72 Hun 
199, 25 N. Y. Supp. 348, 55 N. Y. St. 
480; Sedgwick v. Cleveland, 7 Paige 
287; Eogers v. Traders' Ins. Co., 6 
Paige 583; Field v. Maghee, 5 Paige 
539; Miller v. Bear, 3 Paige 466; Ward 
v. Van Bokkelen, 2 Paige 289 (as to 
development of doctrine) ; Whitney v. 
McKinney, 7 Johns. Ch. 144; Brashear 
v. ' Van Cortlandt, 2 Johns. Ch. 247. 
But see Congregation Shomri Laboker 
Anshe Sakoler v. Sindrack, 15 App. 
Div. 82, 44 N. Y. Supp. 295. N. 0. — 
Polk v. Gallant, 22 N. C. 395, 34 Am. 
Dec. 410. But see Thompson v. Mc- 
Donald, 22 N. C. 463. Ohio. — Grant 
V. Ludlow, 8 Ohio St. 1; McGuffey v. 
Finlev, 20 Ohio 474. R. I. — Sayles V. 
Tibbitts, 5 R. I. 79. Tenn. — Wilson v. 
Davidson County, 3 Tenn. Ch. 536. Vt. 
Day v. Cummings, 19 Vt. 496. Va. — 
Tatum v. Ballard, 94 Va. 370, 26 S. E. 
1871; Lynchburg Iron Co. v. Tayloe, 79 
Va. 671; Omohundro V. Henson, 26 
Gratt. 511; James River, etc. Co. v. 
Littlejohn, 18 Gratt. 53; Newman V. 
Chapman, 2 Rand. 93, 14 Am. Dec. 766 
(holding that the assignor is not a 
necessary party where the assignee, 
who has the legal title, seeks to fore- 
close the mortgage). W. Va. — Chap- 
man v. Pittsburgh & S. R. Co., 18 W. 
Va. 184; Scott V. Ludington, 14 W. Va. 
387; Vance v. Evans, 11 W. Va. 342. 
Eng. — Whitworth v. Davis, 1 Ves. & 
B. 545, 35 Eng. Reprint 212; Chambers 
V. Goldwin, 9 Ves'. Jr. 254, 269, 32 Eng. 
Reprint 600; Bromley v. Holland, 7 
Ves. Jr. 14, 32 Eng. Reprint 2; Brace 
V. Harrington, 2 Atk. 235, 26 Eng. Re- 
print 545; Hill v. Adams, 2 Atk. 39, 
26 Eng. Reprint 426; Blake V. Jones, 
3 Anstr. 651; Kirk v. Clark, Prec. Ch. 
276. 



Costs for Misjoinder. — Where the 
assignor and assignee are improperly 
joined and objection is taken, costs 
will be given. Padwick v. Piatt, 11 
Beav. 503, 50 Eng. Reprint 912. See 
also cases cited, supra, I, B, 1. 

7. U. S. — New Mexico Land Co. 
v. Elkins, 20 Fed. 545, where the agree- 
ment between assignor and assignee 
was executory. Fla. — Robinson v. 
Springfield Co., 21 Fla. 203. Mass.— 
Hobart V. Andrews, 21 Pick. 526. N. 
J. — Miller v. Henderson, 10 N. J. Eq. 
320. N. Y. — Kittle v. Van Dyck, 1 
Sandf. Ch. 76; Whitney v. McKinney, 
7 Johns. Ch. 144; Topping V. Van 
Pelt, Hoffm. 545. N. C — Thompson 
v. McDonald, 22 N. C. 463. 

See also casf_ cited, supra, I, B, 1. 

8. Beach v. White, Walk. (Mich.) 
495; Morey v. Forsyth, Walk. (Mich.) 
465; Miller v. Bear, 3 Paige (N. Y.) 466; 
Ward v. VanBokkelen, 2 Paige (N. Y.) 
289. 

9. U. S. — Hubbard v. Manhattan 
Tr. Co., 87 Fed. 51, 30 C. C. A. 520, 
57 U. S. App. 730. Miss. — Lee v. 
Gardiner, 26 Miss. 521, allowing the 
name of the deceased used to be 
stricken out. N. Y. — Cook v. Genesee 
Mut. Ins. Co., 8 How. Pr. 514. Eng. 
Showell v. Winkup, 60 L. T. N. S. 389. 

"To use of" was held mere surplus- 
age which may be stricken out. Beat- 
tie v. Lett, 28 Mo. 596. 

Where the payee of a note brought 
an action in debt for the use of the 
assignee of the note, he was not al- 
lowed to strike out the indorsement for 
the purpose of showing that he was 
the legal owner, since by his form of 
action he had declared that he was 
not. Langham v. Lebarge, 6 Mo. 355. 

10. Trader's Ins. Co. v. Mann, 118 
Ga. 381, 45 S. E. 426. 



vol. in 



ASSIGNMENTS 



119 



name; 11 also substituting one nominal plaintiff for another, as, where 
the assignor dies, his executor or administrator may be brought in. 12 
D. Assignments Pendente Lite. — 1. At Law. — Unaffected by 
statutes, an assignment, pending an action at law, of a non-negoti- 
able chose did not affect the legal title, and therefore the assignee 
need not be brought in as a party. 13 Either by statute, however, 14 

Consent of Assignor To Be a Party, i ficiary in an insurance policy and an 
Under the Practice Act in England, | assignee of part of the chose was not 
where the equitable assignee seeks to allowed to be brought in. 
make the assignor a party plaintiff, ,i Where an action was brought in the 
the application will only be granted [ name of an equitable owner, an amend- 
when proof is offered of his consent, | ment on trial to insert the holder of 
or of a communication with him, and l the legal title was not allowed. Nel- 



that all terms necessary for his pro- 
tection have been made. Turquand v. 
Fearon, L. E. 4 Q. B. D. 280. 

11. Frank v. Kaigler, 36 Tex. 305; 
Barnett V. Logue's Admr., 29 Tex. 282; 
Heard v. Lockett, 20 Tex. 162. 



son v. Marly, 2 Yerg. (Tenn.) 576. 

"Where plaintiff sued an assignee of 
one Alexander the court refused to 
allow an amendment striking out the 
name of the assignee and thus leav- 
ing Alexander as the plaintiff. John- 



An amendment showing that the son v> Mayrant, 1 McCord L. (S. C.) 

legal title is not i • the nominal plain- 43^ 

tiffs, but in the person for whose use 13> Q u if ? etC- r # Co. V. Hodge, 10 

the action is brought, will not be al- Tex Civ# App> 543) 30 g w> g 2 9. s ee 

lowed without a further amendment to supr(l) i ? a, 2; also the title "Bills and 

strike out the names of the nominal Notes," as to effect on parties of 

plaintiffs. Kichmond, etc. B. Co. v. \ assignments pendente lite. 

Be tf l 'i 8 Ll\ 59 A^ l?„ S 'i5 mL 383 I I 4 - Continuance of Suit in Name of 

1 1 m £ « 9 r, U f ' . 1 3Sfn; & Assignor. - Cal. - Barstow v. Newman, 

5- K -,?; 5 | 8; Dent °T a WS/i 34 Cal. 90; Moss V. Shear, 30 Cal. 468. 

Miss. 194. See supra, I, A 2, d -Contra, _ fi ' Cod fa Ind 4g4 

Karrick v. Wetmore, 22 App. Cas. (D. lg N> £ g u ._ Kr £ geT v . Sylvester) 

L • • . «. • i, 1 • 100 Iowa 647, 69 N. W. 1059; Jordan 

Bringing ui the assignee where plain- ^ » g4 Kan ._L Werner 

tiff has made an absolute assignment, &> ^ Kan> g5 3g pac 2 ^ 

but reserved some beneficia interest. _ ^ ' etc< R c 

Hood V. Hood, 85 N. Y. 561, holding 32 N> ^ ' 1? mite _ 



that since the assignees were necessary 



acre v. Culver, 9 Minn. 295. Miss. — 



parties they should be brought in, but f: , 

a mere direction that they should be ?°?* g Tainf^fo %•' W«?« 
brought in immediately does not have Smith •• ^J 8 '. I* ^oft' S ?V 
the effect of making them parties. * ^inley (Mo App ) "9 s - W. '3, 

Bringing in the assignor as the Teal Green's Bank 1; Wickham, 23 Mo. App. 
party in interest. Platner „. Ryan, 76 663. N. Y. - Hirjhfeld t>. ^gjrald 
N. J. L. 239, 69 Atl. 1007 (where the 157 N. Y 166 51 N. K 997, Hege 
court stayed proceedings until the dec- £ lSC R V> Sl JlfV «LddL 58 N Y 
laration was amended so as to show E 608; Getty *^**£*% 5 **- U 
that the suit was brought by the as- 636; Senft * M a^ttan R Co. 5 
signee for the use and benefit of the NY. Super 417, 24 Abb S C 64, 
„„„; x Tvr ;i i„ *, q™„ii 11 rw T, Cuff v. Dorland, 7 Abb. JN. O. 194. lex. 



assignor). Mills v. Small, 14 Ont. L. 
Rep. 105. 

Introducing New Parties. — Where, 
under a statute, amendments in form 
or substance in furtherance of justice 
were authorized, it was held that in 
an action at law new parties cannot 
be brought in. Wood v. Metropolitan 
Life Ins. Co., 96 Mich. 437, 56 N. W. 
8, where the action was by the bene- 



Mathews V. Boydstun (Tex. Civ. App.), 
31 S W. 814. Utah. — National Bank 
r. Ilnpgood, 9 Utah 85, 33 Pac. 241. 
Wis. — Belden v. Hurlbut, 94 Wis. 562, 
69 N. W. 537; Johnston V. King, 88 
Wis. 211, 58 N. W. 1105. 

In Missouri statute provides that the 
assignor may require the assignee to 
give him a bond indemnifying him 

vol. m 



120 



ASSIGNMENTS 



or by judicial decision, 16 in most states, an assignee under an assign- 
ment pendente lite may continue the action in the name of the as- 
signor, 16 or substitute his own name as plaintiff, at his option, 17 



against costs or procure his substitu- 
tion as party in the action, and in 
default of either the suit shall be dis- 
missed. Cutter v. Waddingham, 33 
Mo. 269. 

If assignor suffers the assignee to 
proceed in his name, the defendant 
cannot complain. Asher v. St. Louis, 
etc. R. Co., 89 Mo. 116, 1 S. W. 123. 

In Oregon, under the statute, actions 
must be prosecuted in the name of the 
real party in interest, except in cases 
■where, pendente lite, he transfers his 
interest to another. In such a case 
the transfer does not operate to abate 
the action, and no order of substitu- 
tion of parties is required. Dundee 
Mortg., etc. Co. v. Hughes, 89 Fed. 182. 

In §outh Carolina Code Civ. Proc, 
§ 142, provides for the continuance of 
an action in the name of the original 
plaintiff even after a transfer of the 
cause of action pending suit, but this 
applies only where the transferee 
claims under the original plaintiff; in 
all other cases the transferee should 
be substituted as party plaintiff in ac- 
cordance with section 132 of the code, 
which provides that every action shall 
be prosecuted in the name of the real 
party in interest. Matthews V. Cantey, 
48 S. C. 588, 26 S. E. 894. 

Where no substit, tion is asked for, 
the action will continue in the. name 
of the assignor as if no transfer had 
been made, and no application to or 
action by the court is necessary. Cal. 
Malone v. Big Flat Gravel Min. Co., 
93 Cal. 384, 28 Pac. 1063; Camarillo 
v. Fenlon, 49 Cal. 202. Ind. — Harvey 
v. Myer, 9 Ind. 391. N. Y. — Piatt v. 
McMurray, 63 How. Pr. 149. Utah. — 
Hanks V. Matthews, 16 Utah 325, 52 
Pac. 7. 

Consolidation of Corporations. — 
Statutes authorizing a continuance of 
the action in the name of the original 
plaintiff do not apply where the plain- 
tiff has ceased to exist, as where a 
corporation suing as plaintiff is pen- 
dente lite consolidated with other cor- 
porations under a new name. Kansas, 
etc. R. Co. v Smith, 40 Kan. 192, 19 
Pac. 636; La Pointe v. O'Malley, 47 
Wis. 332, 2 N. W. 632. 

15. U. S. — r lnompson v. Maxwell, 

vol m 



95 U. S. 391, 24 L. ed. 481 (holding 
that a bill of review will not lie for 
assignees). Ex parte South Alabama 
R. Co., 95 U. S. 221, 24 L. ed. 355. 
Ala. — Foster v. Goodwin, 82 Ala. 384, 
2 So. 895. Conn. — Pond v. Clark, 24 
Conn. 370. Mich. — Rajnowski v. De- 
troit, etc. R. Co., 74 Mich. 20, 20 N. 
W. 847; Moon V. Harder, 38 Mich. 566. 
Minn. — St. Anthony Mill Co. V. Van- 
dall, 1 Minn. 246. Miss. — Montgomery 
v. Handy, 63 Miss. 43. N. Y. — Sedg- 
wick v. Cleveland, 7 Paige 287; Gale 
v. Vernon, 1 Sandf. 679. Term. — Paul 
v. Williams, 12 Lea 215. Tex. — Clarke 
v. Koehler, 32 Tex. 679 (holding that 
the original plaintiffs to an action can- 
not sell out their interest pendente lite 
and make new parties to the suit) ; 
Dowell v. Mills, 32 Tex. 440; Evans Co. 
v. Reeves, 6 Tex. Civ. App. 254, 26 
S. W. 219 (where pendente lite one 
partner sells his interest in the firm 
property to the other partner a change 
of parties is unnecessary). Wash. — 
Hood v. California Wine Company, 4 
Wash. 88, 29 Pac. 768. W. Va. — List 
v. Pumphrey, 3 W. Va. 672. 

16. See cases in two preceding 
notes. 

17. U. S. — Ex parte South Alabama 
R. Co., 95 U. S. 221, 24 L. ed. 355. 
Cal. — Hestres V. Brennan, 37 Cal. 385. 
Ky. — Cantrell v. Hewlett, 2 Bush 311. 
Mich. — Moon v. Harder, 38 Mich. 566; 
Peters v. Gallagher, 37 Mich. 407; New- 
berry v. Trowbridge, 13 Mich. 263. Mo. 
Renfro v. Prior, 25 Mo. App. 402. N. 
Y. — Hirshf eld v. Fitzgerald, 157 N. Y. 
166, 51 N. E. 997; Platte v. McMurray, 
63 How. Pr. 149; Emmet v. Bowers, 
23 How. Pr. 300; Packard v. Wood, 
17 Abb. Pr. 318; Arnold 17. Keyes, 5 
Jones & S. 135; Merchants' Exch. Nat. 
Bank v. Waitzfelder, 14 Hun 47 (where 
the assignee, by motion, might have 
been brought in as plaintiff). Ore. — 
King v. Miller, 53 Ore. 53, 97 Pac. 
542, assignee may continue action in 
name of assignor or in his own name 
at his option, without filing supple- 
mental bill. Utah. — Hanks v. Mat- 
thews, 16 Utah 325, 52 Pac. 7; Lowell 
V. Parkinson, 4 Utah 64, 6 Pac. 58. 
Wyo. — Smith v. Harrington, 3 Wyo. 
503, 27 Pac. 803. 



ASSIGNMENTS 



121 



though this is sometimes subject to the discretion of the court. 18 
2. In Equity. — An assignment pending a suit in equity does not 
cause the action to abate, but the defendant may refuse to proceed 
until a supplemental bill is filed making the assignee a party plain- 
tiff. 19 

III. PLEADINGS. — A. In General. — In actions on assigned 
choses the usual rules of pleading should be observed.- All the 
facts upon which the right of recovery or defense depends should 
be set out. 21 



Action may be prosecuted in name 
of either assignor or assignee, but until 
notice of the transfer is given to the 
court the parties to the record are 
prima facie the parties before it. Chis- 
holm v. Clitherall, 12 Minn. 375. 

The assignee might come in as plain- 
tiff by an original bill in the nature 
of a supplementary bill and conduct 
the litigation in his own name. Trabue 
v. Bankhead, 2 Tenn. Ch. 412; Paul 
v. Williams, 12 Lea (Tenn.) 215; Wills 
V. Whitmore, 9 Baxt. (Tenn.) 198. 

18. Ark. — Ivey v. Drake, 36 Ark. 
228. Cal. — Emerson V. McWhirter, 
128 Cal. 268, 60 Pac. 774. Ind. — Jones 
V. Julian, 12 Ind. 274; Dearmond V. 
Dearmond, 10 Ind. 191; Harvey V. 
Myer, 9 Ind. 391; Hubler V. Pullen, 9 
Ind. 273, 68 Am. Dec. 620. la. — 
Snyder v. Phillips, 66 Iowa 481, 484, 
24 N. W. 6, 7; Chickasaw County v. 
Pitcher, 36 Iowa 593. Ky. — Dougherty 
v. Smith, 4 Mete. 279. Minn. — Brown 
C. Kohout, 61 Minn. 113, 63 N. W. 
248. N. Y. — Getty V. Spauldlng, 58 
N. Y. 636; McNamara V. Harris, 4 Civ." 
Proc. 76; Howard V. Taylor, 5 Duer 
604; Murray V. General Mut. Ins. Co., 
2 Duer 607; Sheldon v. Havens, 7 How. 
Pr. 268; Harris V. Bennett, 6 How. l'r. 
220; Ford v. David, 1 Bosw. 569; 
O 'Dougherty V. Kemington Paper Co., 
1 N. Y. St. 523; Riverside Bank V. 
Totten, 16 N. Y. Supp. 348. Ohio. — 
Sifford v. Beaty, 12 Ohio St. 189. Wyo. 
Smith V. Harrington, 3 Wyo. 503, 27 
Pac. 803. 

The statute requiring that indemnity 
be given or that the transferee be 
substituted, takes away the discretion 
of the court to deny an application for 
this purpose. Childs i;. Thompson, 81 
Mo. 337, citing Smith r. Phelps, 74 
Mo. 598; Cutter V. Waddingham, 33 
Mo. 269. 



19. la. — Wright C. Meek, 3 Greene 
472. Mo. — Gamble V. Johnson, 9 Mo. 
265. N. Y. — Sedgwick V. Cleveland, 
7 Paige 287; Garr v. Gomez, 9 Wend. 
649. W. Va. — List V. Pumphrey, 3 W. 
Va. 672. Eng. — Williams V. Kinder, 
4 Ves. Jr. 38J, 31 Eng. Reprint 197. 

But where the cause proceeded with- 
out objection until after report by the 
referee, the court refused to dismiss 
the bill. Pond v. Clark, 24 Conn. 370. 

Where Part Interest Is Assigned, As- 
signee Not a Necessary Party. — Gal- 
veston, etc. R. Co. V. Mathes (Tex. Civ. 
App.), 73 S. W. 411, where plaintiff as- 
signed to his attorney an interest in 
the cause of action. 

20. Kan. — Polster v. Rucker, 16 
Kan. 115, defective pleading may be 
cured by verdict. Ohio. — Hall f. Cin- 
cinnati R. Co., 1 Disney 58, the causes 
of action should be stated and num- 
bered separately. Tex. — McNeill r. 
Masterson, 79 Tex. 670, 15 S. W. 673, 
indefiniteness in the pleadings should 
be taken advantage of by special de 
murrer. 

21. Ky. — Conn V. Jones, Hard. 8. 
N. H. — Whittier V. Whittier, 31 N. 
H. 452. N. Y. — Seeley r. Seeley, 2 
Hill 496; Janes V. Saunders, 19 App. 
Div. 538, 46 N. Y. Supp. 574. Pa.— 
Heckscher V. American Tube, etc. Co., 
137 Pa. 421, 20 Atl. SOL Tex. — Gooch 
V. Parker, 16 Tex. Civ. App. 256, 41 
S. W. 662. Vt. — Goss v. Barker. 22 
Vt. 520. Wis. — Webber c. Roddis, 22 
Wis. 61. 

Alleging Fund to Which Assign- 
ment Relates. — Where the defense re- 
lies upon an assignment in the form 
of an order addressed to the obligor 
directing him to pay the assignee a 
certain sum "out of funds" in the ob- 
ligor's hands, or to come to his 
hands, the affidavit should allege the 

vol. m 



ASSIGNMENTS 



122 

B Op Plaintiff. -1. In General. - The plaintiff should allege 
sufficient facts to show his right to maintain the action" as for 
e^mpTe his possession of the legal title, if his right depends upon 
that- An assignee need not, however, in his pleading, set out the 
statute which enables-him to sue in his own name- but he should 



existence of a fund applicable to the 
payment of the order. Heckschei ' v. 
American Tube, etc. Co., 137 Pa. 421, 
20 Atl. 80 «. 

Allegation of Demand on Debtor.— 
Where the allegation that the cove- 
nant sued on was presented to de- 
fendant and that he refused to pay 
according to its true meaning and ef- 
fect it was held insufficient because 
it did not allege when or by whom 
the covenant was presented for pay- 
ment. Sabin V. Hamilton, 2 Ark. 485. 
Performance by Assignor.— In an ac- 
tion on an assignment of part of an 
indebtedness which arose out of a con- 
tract between defendant and plaint- 
iff's assignor the plaintiff need not a - 
lege performance of the contract by 
the assignor, for the order on, and ac- 
ceptance by, the defendant is the 
foundation of the suit, and not the 
original contract. Welch v. Mayer, 4 
Colo. App. 440, 36 Pac. 613. 

Alleging Corporate Existence of As- 
signor. — For failure to do this the 
complaint was held bad on demurrer 
in Herbst Importing Co. V. Hogan, 16 
Mont. 384, 41 Pac. 135. But in Strong 
V. Moore, 75 Kan. 437, 89 Pac. 895, 
it was held that the corporate entity 
of the assignor need not be alleged. 
See also Crinnian v. Knauth, 29 Misc. 
523, 61 N. Y. Supp. 976, where the 
complaint showed an assignment by a 
certain firm, it was held unnecessary 
to allege the existence of the partner- 
ship or to specify persons competent 
to contract. 

In aix action on an assigned con- 
tract for work and labor, the declara- 
tion should state the performance of 
the labor by the assignor. Nagel- 
baugh v. Harder, etc. Min. Co., 21 Ind. 
App. 551, 51 N. E. 427. 

22. Cal. — Moore v. Waddle, 34 Cal. 
145. Fla. — Jordan v. John Eyan Co., 
35 Fla. 259, 17 So. 73. Kan. — Polster 
v. Eucker, 16 Kan. 115. Ky. — May- 
n.\rd v. Cassady, 4 Ky. L. Eep. 836, 
it should be alleged by whom chose 
was assigned. Mich. — Morrill V. Bis- 
sell, 99 Mich. 409, 58 N. W. 324. Minn. 



St. Anthony Mill Co. v. Vandall, 1 
Minn. 246. Mo. — Boger v. Hamilton, 
21 Mo. App. 520. Neb. — Yeisler v. 
Jetter, 86 Neb. 352, 125 N. W. 632. 
N. J. — Stevens v. Bowers, 16 N. J. L. 
16, where it was held sufficient to al- 
lege the fact of change of interest 
without stating all the facts making 
the change effectual. N. Y. — Cox v. 
Stillman, 59 Misc. 248, 112 N. Y. Supp. 
328; Crinnian v. Knauth, 29 Misc. 523, 
61 N. Y. Supp. 976; H. C. Miner Litho- 
graphing Co. v. Canary, 20 Misc. 664, 
46 N. Y. Supp. 256; Hoshkowitz v. 
Sargoy, 125 N. Y. Supp. 913; King v. 
King, 68 N. Y. Supp. 1089; Horner v. 
Wood, 15 Barb. 371. Tex. — Thomas v. 
Chapman, 62 Tex. 193, allegations of 
ownership are sufficient to let in proof 
of the assignment. Wash. — Latimer v. 
Baker, 25 Wash. 192, 64 Pac. 899. 
Compare with Seattle National Bank v. 
School Dist. No. 40, 20 Wash. 368, 55 
Pac. 317. Wis.— Eiver Falls Bank v. 
German Am. Ins. Co., 72 Wis. 535, 40 
N. W. 506; Burnham V. Milwaukee, 69 
Wis. 379, 34 N. W. 389. Can. — Cou- 
sins v. Bullen, 6 Ont. Pr. 71. 

That plaintiff sues "as assignee" 
need not be alleged. Brooks v. Whit- 
ing, 5 Ark. 18. The word "assignee" 
is merely descriptio personae. Bloom v. 
Sexton, 33 Mich. 181. 

The assignee's incapacity to sue is 
waived unless objected to. Eogers v. 
Abbot, 206 Mass. 270, 92 N. E. 472. 

"The rule seems to be that, where 
the original owner might have sued 
in the federal courts if the chose in ac- 
tion had not been assigned, an assignee 
thereof is not deprived of his right 
to sue in said courts upon assignment 
of the chose in action to him, although 
his immediate assignor could not en- 
force the remedy in the courts of the 
United States." Moore Bros. Glass 
Co. v. Drevet Mfg. Co., 154 Fed. 737. 

23. Carpenter v. Talbot, 33 Fed. 
537; Guest v. Ehine, 16 Tex. 549; An- 
derson v. Ohaw, 2 Posey Unrep. Cas. 
(Tex.) 285. 



76. 



24. Gano V. Slaughter, Hard. (Ky.) 



vol. rn 



ASSIGNMENTS 



123 



allege compliance with the statutory conditions under which the suit 
is permitted. 25 If the action is based on the assigned chose, the 
declaration must state facts sufficient to show a cause of action in 
the assignor, had there been no assignment. 26 Performance of all 
conditions precedent must be alleged. 27 

Where the distinction between the forms in equity and at law has 
been abolished, and the assignment is one not recognized at law, 
the complaint should contain averments substantially like those 
formerly required in a bill in equity, or such averments as are made 
necessary by statute. 28 

2. Particular Averments. — a. Alleging Beneficial Interest. — In an 
action by the assignor it is usual and proper, 29 but not necessary, for 
the plaintiff to indicate for whose benefit the action is brought. 80 



25. Compliance With Statutory Con- 
ditions. — Bush v. Preseott, etc. E. Co., 
76 Ark. 497, 89 S. W. 86; Kansas City, 
etc. R. Co. V. Joslin, 74 Ark. 551, 86 
S. W. 435; Seeley v. Seeley, 2 Hill 
(N. Y.) 496. 

In Maine, an assignee cannot sue in 
his own name unless he has filed, with 
the writ, a copy of the assignment. 
Sleeper v. Gagne, 99 Me. 306, 59 Atl. 
472, where it was held sufficient to 
make the assignment on the bill of 
items annexed to the writ. 

Statutory Provisions as to Process in 
Actions on Assignments Must Be Com- 
plied With. — Liberty v. Haines, 101 Me. 
402, 64 Atl. 665, where the Rev. St. 
c. 84, § 144, was held mandatory in re- 
quiring the indorsement of the name 
and residence of the assignee on writ 
or process at any time during the pend- 
ency of an action, if defendant re- 
quested it. 

26. Non-Payment to Assignor. — 
Keeton v. Scantland, Hard. (Ky.) 149; 
Lynch v. Barr, Snecd (Ky.) 170. 

Non-Payment to Assignee. — Cal. 
Treston v. Central California Water Co., 
11 Cal. App. 190, 104 Pac. 462. N. J. 
Van Schoick v. Van Schoick, 76 N. J. L. 
242, 69 Atl. 1080; Gregory v. Freeman, 
22 N. J. L. 405; Goldengay v. Smith, 
62 N. J. Eq. 354, 50 Atl. 456. N. Y. 
Miner Lithographing Co. v. Canary, 20 
Misc. 664, 46 N. Y. Supp. 256; Palmer 
v. Smedley, 28 Barb. 468. 

Consideration, Breach and Damages 
Must Be Alleged. — Roberts v. Smith, 
58 Vt. 492, 4 Atl. 709, 56 Am. Rep. 567. 
27. Performance of Conditions 
Precedent. — Where the assignee of a 
building contract was to pay the as- 
signor on receiving payment from the 



owner, the assignor shoull allege such 
receipt of payment by the assignee. 
Schilling Co. v. Robert H. Reid & Co., 
87 N. Y. Supp. 1115. 

Performance of Contract. — Golden- 
gay v. Smith, 62 N. J. Eq. 354, 50 Atl. 
456; Burnham v. Milwaukee, 69 Wis. 
379, 34 N. W. 389. 

Conditional Liability. — The existence 
of the necessary conditions must be al- 
leged, as the use of due diligence where 
the right of recovery depends upon it 
(Leas v. White, 15 Iowa 187); or non- 
marriage, in an action to recover pay- 
ments under a separation contract. 
Spence v. Woods, 134 App. Div. 182, 
118 N. Y. Supp. 307. 

Where the assignor sues for his share 
of the assigned claim he should allege 
that the claim has been collected by 
the assignee. Cox v. Stillman, 59 Misc. 
248, 112 N. Y. Supp. 328. 

28. Home Ins. Co. V. Atchison, etc. 
R. Co., 19 Colo. 46, 34 Pac. 281; Ex- 
change Bank v. Ford, 7 Colo. 314, 3 
Pac. 449; Weaver v. Beard, 21 Mo. 
155. 

29. Pa. — Armstrong v. Lancaster, 5 
Watts 68, 30 Am. Dec. 293. Tenn.— 
Trezevant V. McNeal, 2 Humph. 352. 
Vt. — Stiles v. Farrar, 18 Vt. 444. 

30. HI. — Union Nat. Bank v. Barth, 
179 111. 83, 53 N. E. 615; Wey v. 
Dooley, 134 111. App. 244; Meyer v. 
Ross, 119 HI. App. 485; Chamberlain v. 
Fernbach, 118 111. App. 145; Tarrant V. 
Burch, 102 111. App: 393. Mich. — 
Peters V. Gallagher, 37 Mich. 407. N. J. 
Elsberg v. Honeck, 76 N. J. L. 181, 68 
Atl. 1090. W. Va. — Bentley v. Stand- 
ard F. Ins. Co., 40 W. Va. 729, 23 S. E. 
584. 

"To the Use of" Surplusage. — Beat- 
tie v. Lett, 28 ili. 596. 

vol m 



124 



ASSIGNMENTS 



But if in such an action a defense is pleaded against the assignor 
personally, the replication should set out the fact of the assignment 
and the beneficial interest of the assignee. 31 Where the assignee 
sues in his own name as holder of the legal title, he need not allege 
in his declaration that others have the beneficial interest, if such 
be the fact. 32 

b Fact of Assignment. — Where the assignor sues in his own 
name, as holder of- the legal title, for the use of the assignee, the 
assignment need not be pleaded. 33 In an action by the assignee, 
where his right to sue depends on the assignment, the declaration 
must allege not only facts sufficient to show a cause of action on the 
chose assigned, 34 but also the fact of assignment to the plaintiff. 



In Clav F. &. M. Ins. Co. V. Huron 
Salt & Lumb. Mfg. Co., 31 Mich. 346, 
it was held that the use of the phrase 
"for the use and benefit of" some 
person other than the plaintiff was 
not necessary, although the complaint 
set forth no assignment, nor the fact 
that another had the beneficial inter- 
Sufficiency of Showing of Beneficial 
Interest.— Where it is necessary that 
the interest of the party for whose 
benefit the action is brought should ap- 
pear, it is sufficient if it appear in any 
part of the pleadings. Armstrong v. 
Lancaster, 5 Watts (Pa.) 68, 30 Am. 
Dee. 293; Canby v. Ridgway, 1 Bmn. 
(Pa.) 496. 

Where an assignor sues on the as- 
signed cLose and recovers judgment aft- 
er" he has parted with all beneficial 
interest, he may be compelled to mark 
the judgment for the use of the as- 
... "Watson V. McManus, 224. Pa. 
4 . I. 73 Atl. 931. 

31. Parsons v. Woodward, 22 N. J. 
L 196 (insolvency); Raymond v. 
Squire, 11 Johns. (N. Y.) 47 (release). 

Where to a plea of payment to plain- 
tiff the replication should set up the as- 
signment and the fact that the suit 
■was brought for the use of the as- 
signee. Chestnut Hill Reservoir Co. V. 
Chase, 14 Conn. 123. 

32. Zimmerman v. Wead, 18 111. 305; 
King v. Miller, 53 Ore. 53, 97 Pac. 
542. 

But in Uncas Paper Co. v. Corbin, 75 
Conn. 675, 55 Atl. 165, it was held 
that an assignee suing in his own name 
must show, as a condition precedent 
to exercising that right, tlat he is the 
owner in his own light, for his own 
benefit, without accountability. 

Vol. Ill 



33. Boqua V. Marshall, 88 Ark. 373, 
114 S. W. 714. 

34. Palmer v. Smedley, 28 Barb. (N. 
Y.) 468. 

35. U. S. — Earhart v. Campbell, 
Hempst. 48, 8 Fed. Cas. No. 4,241a. 
Cal. — Stearns v. Martin, 4 Cal. 227. 
Colo. — Gallup V. Lichter, 4 Colo. App. 
296, 35 Pac. 985. Fla. — Jordan V. John 
Ryan Co., 35 Fla. £59, 17 So. 73. Ind. 
Treadway V. Cobb, 18 Ind. 36 (which 
being an action by an assignee against 
the maker of a promissory note, the as- 
signment did not have to be set out, 
it being no part of the cause of action ) ; 
Nagelbaugh v. Harder, etc. Min. Co., 
21 Ind. App. 551, 51 N. E. 427. la. — 
Hoppes v. Des Moines City R. Co., 126 
N. W. 783; McAke- 9. McNamara, 140 
Iowa 112, 117 N. W. 1122; Montague v. 
Reineger, 11 Iowa 503; McCarn v. 
Rivers, 7 Iowa 404; Mainer v. Reynolds, 
4 Greene 187. Ky. — Miller v. Rice, 1 
Bush 70, 92 Am. Dec. 475. Me. — Wood 
V. Decoster, 66 Me. 542, in which case 
a demurrer was held to admit the as- 
signment, and a presumption followed 
that the assignment was valid. Md. — ■ 
Gable v. Scarlett, 56 Md. 169. Mich. — 
Pierce v. Closterhouse, 96 Mich. 124, 
55 N. W. 663; Altman v. Fowltr, 70 
Mich. Z7, 37 N. W. 708; Webster v. 
Williams, 69 Mich. 135, 37 N. W. 
62 (holding a judgment valid although 
proof of the assignment was admitted 
over defendant': objection, en the 
score that no ass : gnment was aver- 
red); Cilley v. VanPatten,' 58 Mich. 
404, 25 N. W. 326; Rose v. Jackson, 
40 Mich. 29; Blackwood r. Brown, 32 
Mich. 104; Draper v. Fletcher, 20 Mich. 
154. Mo. — Compare Lamar Water, etc. 
Co. v. Lamar, 140 Mo. 145, 39 S. W. 
768. N. H. — Tibbetts v. Gerrish, 25 N. 



ASSIGNMENTS 



125 



A failure to allege the assignment may be cured by amendment not 
amounting to a new cause of action, 36 or by verdict, where no objec- 
tion is raised as to the pleadings and there is evidence of assign- 
ment. 37 Where, however, the right to maintain the action does not 
depend on the assignment it need not be alleged. 38 

In certain forms of action, as trover and replevin, it has been held 
unnecessary to set out the nature of plaintiff's title, or to allege the 
assignment, these being matters in evidence merely. 39 If the plain- 
tiff is a remote assignee it has been held that he should allege the 
facts of his derivative title through the intermediate assignees. 40 
Sufficiency of Allegation of Assignment. — The sufficiency of the alle- 
gation of assignment will depend largely on the subject-matter as- 
signed and its negotiability. 41 A mere recital that plaintiff sues as 



H. 41, 57 Am. Dec. 307, to the point 
that it is not necessary to allege 
mesne assignments unless the names of 
the intermediate parties appeared upon 
the instrument 3ued as the indorsers 
or assignors. N. J. — Sullivan r. Vis 
conti, 6" N. J. L. 543, 53 Atl. 598; 
Cullen V. Woolverton, 63 N. J. L. 664, 
44 Atl. 646; Gaskill V. Barbour, 62 N. 
J. L. 530, 41 Atl. 700; Lindsay V. Mc- 
Inerney, 62 N. J. L. 524, 41 Atl. 701. 
N. Y. — Brower v. Crimmins, 67 Misc. 
68, 121 N. Y. Supp. 648; Buffalo Ice 
Co. v. Cook, 9 Misc. 434. 29 N. Y. Supp. 
1057, 61 N. Y. St. 731; Billings v. Jane, 
11 Barb. 620 (holding that under Code 
Proc, § 111, requiring the real party 
in interest to sue an assignee of a note 
payable to order need not allege the 
indorsement to him). Ohio. — Lowther 
r. Lawrence, Wright 180. Pa.— Fett's 
Estate, 39 Pa. Super, 246, sufficiency 
of evidence of assignment. Tenn. — 
Smith V. Cottrel, 8 Baxt. 62s Bradley 
Co. v. Surgoine, 6 Baxt. 108; Stovall t. 
Bowers, 10 Humph. 560. Tex.— Rig- 
gins v. Sass (Tex. Civ. App.), 127 S. 
W. 1064. Va. — Lynchburg Iron Co. v. 
Tavloe, 79 Va. 671; Marietta Bank v. 
Pindall, 2 Rand. 465; Gordon v. 
Brown's Exr. 3 Hen. & M. 219. Wis. 
Johnson r. Vickers, 139 Wis. 145, 120 
N. W. 837, 131 Am. St. Rep. 1046; 
River Falls Bank v. German Am. Ins. 
Co., 72 Wis. 535, 40 N. W. 506. 

An averment that the original con- 
tractor with a city, with the consent 
of his sureties and the board of pub- 
lic works, assigned the contract to 
plaintiff, together with all Ids claims 
for money earned and to be earned 
under it, and for and on account of 
said extra work and materials, that 
accordingly, in the completion of the 
sewer under the contract, plaintiff 



assumed in every respect the position 
and situation of such contractor, nam- 
ing him, was held a sufficient aver 
of the substitution and assignment. 
Burnham v. Milwaukee, 69 Wis. 379, 34 
KT. W. 389. 

An allegation of an assignment by 
a company is not supported by proof 
of an assignment executed by an indi- 
vidual. Kibler v. Brown, 114 Fed. 
1014; Saffier V. Haft, S6 App. Div. 284, 
13 Ann. Cas. 318, 83 N. Y. Supp. 763. 

36. Farnam v. Doyle, 12S Mich. 69?, 
87 N. W. 1026; Dawson r. Peterson, 
110 Mich. 431, 68 N. W. 246. 

Where there was no assignment when 
plaintiff's action wa3 begun, he can- 
not by amendment, set up an assign- 
ment written over a signature, after 
action begun, for the purpose of 
enabling him to maintain his action. 
Weinwick V. Bender, 33 Mo. 80. 

37. Lassiter v. Jackman, 88 Inl. 
118. 

38. Allegation of Assignment Un- 
necessary. — Where the assignor, who 
was the original contracting party 
named in the ordinance, assigned his 
right under the ordinance and his as- 
signee then made the contract with tli ! 
city, it was rot necessary to allege the 
assignment. Lamar Water, etc Co. r. 
Lamar, 140 Mo. 145, 39 S. W. 768. 

39. Warren r. Dwver, 91 Mich. 411, 
51 N. W. 1062 (trover)- Myres v. Yapel 
60 Mich. 339, 27 N. W. 536, (re- 
plevin). 

40. Williams V. Wetherbee, 1 Aik. 
(Yt.) 233. But see Tibbets r. Gerrish. 
25 N. II. 41, 57 Am. Dec. 307, where 
a second assignee of a note did not 
have to aver a first assignment which 
was in blank. 

41. An alligation that a note was 



vol in 



12 6 ASSIGNMENTS 

assignee is insufficient, 42 but a general allegation of an assignment 
to the plaintiff has been held sufficient to imply a valid assignment. 43 



assigned, instead of the allegation that 
the debt which it represented "was as- 
signed, is sulficient. Chestnut Hill 
Eeservoir Co. v. Chase,' 14 Conn. 123. 

Where in an action to foreclose a 
mortgage an averment that the mort- 
gage notes were indorsed to the plain- 
tiff, and payment thereof ordered to be 
made to him, was held sufficient. 
Slaughter v. Foust, 4 Blackf. (Ind.) 
379. 

An averment of the assignment of 
a note by the paye3 by indorsement 
thereon, together with the indorsed 
note aipende^ to the complaint, is a 
sufficient allegation of the assignment. 
Treadway v. Cobb, 18 Ind. 36. 

Under How. St. Mich., § 344, the at- 
tachment of the assignment to the as- 
signed account was held a sufficient 
averment. Morrill v. Bissell, 99 Mich. 
409, 58 N. W. 324 (annotated case — re- 
viewing prior authorities). 

An averment (before a justice) that 
a claim for services was assigned to 
plaintiff w sufficient aver: :ent that 

the assignment was of an antecedent 
debt. Farnam v. Doyle, 128 Mich. 696, 
87 N. W. 1026. 

A bill of particulars attached to a 
declaration on the common counts, and 
showing the assignment to the plain- 
tiff, rendered unnecessary any further 
averment of c\e assignment. Snell v. 
Gregory, 37 Mich. 500; Kelly v. Waters, 
31 Mich. 404. 

An allegation of the assignment of 
a debt and reference to an order drawn 
on defendant as evidence of it was 
held sufficient to show an equitable as- 
signment. Walker t>. Mauro, 18 Mo. 
564. 

An averment that certain covenants 
had been assigned and that an agree- 
ment had been made whereby the as- 
signee was to have the benefit of them, 
and that for this purpose a power of 
attorney had been given to him, was 
held sufficient. Raymond V. Squire, 11 
Johns. (N. Y.) 47. It is sufficient to 
allege that the contract was "duly" 
assigned. Buffalo Tin Can Co. v. E. 
W. Blis- Co., 118 Fed. 106. Further 
on sufficiency of allegation of assign- 
ment, see U. S. — Carpenter v. Talbot, 

vol. in 



33 Fed. 537. Wash. — Rice v. Yakima, 
etc. R. Co., 4 Wash. 724, 31 Pac. 23. 
Wis. — Racine County Bank v. Ayres, 
12 Wis. 512. 

Clerical Errors Will Be Overlooked.— 
Where plaintiff in tracing his title to 
a trade secret stated that the assign- 
ment to him was in April, 1898, and 
the date of the assignment to his as- 
signor was stated to be February, 1899, 
the discrepancy was regarded as a 
clerical error. Vulcan Detinning Co. v. 
American Can Co., 67 N. J. Eq. 243, 
58 Atl. 290. 

42. Ark. — Brooks v. Whiting, 5 Ark. 
18. la. — McAleer v. McNamara, 140 
Iowa 112, 117 N. W. 1122. Mich- 
Bloom v. Sexton, 33 Mich. 181. N. .T.— 
Lindsay v. Mclnerney, 62 N. J. L. 524, 
41 Atl. 701. 

43. U. S.— Buffalo Tin Can Co. v. 
E. W. Bliss Co., 118 Fed. 106. S. C— 
Haile v. Richardson, 2 Strobh. L. 114 
Wis. — River Falls Bank v. German Am. 
Ins. Co., 72 Wis. 535, 40 N. W. 506. 

Authority of assignor to assign need 
not be specially alleged. Keen v. 
Brooks, 19 Colo. App. 165, 73 Pac. 1092, 
where the allegatio: was that the ex- 
ecutor of a payee assigned notes, with- 
ou' alleging ? is authority from the pro- 
bate court, the presumption is that 
a valid assignment is alleged. Cri- - 
nian v. Knauth, 29 Misc. 523, 61 N. Y. 
Supp. 976, affirmed, 48 App. Div. 633, 
63 N. Y. Supp. 1106. But see Browcr 
v. Crimmins, 67 Misc. 68, 121 N. Y. 
Supp. 648 (where authority of president 
of an incorporated labor union to 
assign had to be shown). 

Where a chose was assigned by a 
corporation it was held in S. C. Herbst 
Importing Co. v. Hogan, 16 Mont. 384, 
41 ^ Pac. 135, that the legal existence 
of the corporation and its nature should 
be alleged. But see Strong v. Moore, 
75 Kan. 437, 89 Pac. 895, where an 
allegation of the corporate entity of 
assignor was unnecessary. 

In Darlington Miller Lumb. Co. V. 
Nat. Surety Co., 35 Tex. Civ. App. 
346, 80 S. W. 238, it was held that 
one claimi an assignment through 
an attorney iu fact must show that the 
latter l.ad authority. 



ASSIGNMENTS 



127 



Setting Out of Assignment or Copy. — When plaintiff's action is based 
on the original cause assigned, and not on the assignment, the lat- 
ter need not be set out, 4 * nor a copy thereof attached to the plead- 
ing, except where the statute requires it. 46 

c. Manner and Form of Assignment. — "Where the right of an as- 
signee to maintain the action in his own name depends on the man- 
ner or form of assignment, these should be set out in the declara- 
tion. 46 When a written assignment is necessary to vest the legal 
title in the plaintiff, such an assignment should be alleged. 47 If the 
assignment is conditional, the condition should be set out. 48 Though 



44. Stanford v. The Broadway Sav. 
& Loan Assn., 122 Ind. 422, 24 N. E. 
154; Thayer v. Pressey, 175 Mass. 225, 
56 N. E. 5; Keith v. Champer, 69 Ind. 
477. 

In an action on a note by the as- 
signee against the maker it is not 
necessary to make the assignment of 
the note a part of the complaint, be- 
cause the assignment constitute? no 
part of the cause of action, but in an 
action by an indorsee against an in- 
dorser the indorsement constitutes the 
contract sued on and should be set 
ou- by original cr copy. Treadway v. 
Cobb, 18 Ind. 36. Contra, Gregory v. 
Freeman, 22 N. J. L. 405. 

45. Under Gen. St., p. 2572, plain- 
tiff must furnisn the defendant with a 
c<%>y of the assignment, if d-fendant 
makes a writte-. demand for same. 
Cullen v. Woolverton, 63 N. J. L. 644, 
44 Atl. 646. 

Filing With Writ. — Where the as- 
signment is pleaded, a failure to file 
it with the writ as required .is matter 
in abatement only. Littlefield v. Pink- 
ham, 72 Me. 369. 

An assignment on the back of an 
assigned note filed with the declara- 
tion was held sufficient filing. Sleeper 
r. Gagne, 99 Me. 306, 59 Atl. 472. 

46. Ala.— Phillips P. Sellers, 42 Ala. 
658; Skinner v. Bedell, 32 Ala. 44 (in- 
dorsement of assignment should be al- 
leged). Ind. — Gordon r. Carter, 79 Ind. 
386; Stowe V. Weir, 15 Ind. 341; Bar- 
cus v. Evans, 14 Ind. 381; Garrison v. 
Clark, 11 Ind. 369. N. J.— Allen v. 
Pancoast, 20 N. J. L. 68; Stroud v. 
Howell, 3 N. J. L. 649. 

Where under the statute the assignee 
sues in his own nam , without making 
the assignor a party, he must allege 
the manner of the assignment. Tread- 
way v. Cobb, 18 Ind. 36. 



The insufficiency of allegation of the 
manner of assignment should be raised 
by demurrer. Phillips v. Sellers, 42 
Ala. 658; Phipps v. Bacon, 183 Mass. 
5, 66 N. E. 414. 

47. Ala. — Ragland v Wood, 71 Ala. 
134, 46 Am. Rep. 305 (holding that 
words "duly transferred" do not im- 
port a writing, but words ' ' duly as- 
signed" do, the word assignment im- 
porting a writing); Phillips v. Sellers, 
42 Ala. 658. Ga.— Foster v. Sutlive, 
110 Ga. 297, 34 S. E. 1037; Hartford 
F. Ins. Co. v. Amos, 98 Ga. 533, 25 
S. E. 575. Ind.— Watson v. Conwell, 

3 Ind. App. 518, 30 N. E. 5. la. — 
Williams v. Sautter, 7 Iowa 434 (where 
under the statute a written transfer 
was necessary to enable the assignee 
to sue in his own name) ; Andrews v. 
Brown, 1 Iowa *154 (Cole's ed.). Miss. 
Lowenburg v. Jones, 56 Miss. 688 
(where an equitable owner of a chose 
who had no written assignment was 
permitted to sue in his own name, 
though the code of 1892, § 660, pro- 
vided that an assignee may sue in his 
own name if the assignment be :n 
writing); Tully v. Herrin, 44 Miss. 
626 (where debt had to be assigned 
in writing). Can. — Lynch v. William 
Richards Co., 37 N. Bruns. 549. 

Contra, Rice v. Yakimn etc. R. Co., 

4 Wash. 724, 31 Pac. 23 (where it was 
held unnecessary to allege the assign- 
ment to be in writing although it might 
be necessary to prove a -rritten assign- 
ment on the trial) j- Gunderson r. 
Ihomas, 87 Wis. 406, 58 N. W. 750; 
River Falls Bank v. German Am. Ins. 
Co., 72 Wis. 535, 40 N. W. 506. 

48. Hobart r. Andrews, 21 Pick. 
(Mass.) 526; Walburn v. Ingilby Coop, 
t. Br. 270, 47 Eng. Reprint 96, 3 L. J. 
Ch. 21, 1 Myl. & K. 61, 7 Eng. Ch. 61, 
39 Eng. Reprint 604. 

vol. m 



128 



ASSIGNMENTS 



the statute requires the assignment to have been bona fide, plaintiff 
need not aver that it was bona fide.* 9 

Time, Place and Delivery of Assignment. — When the time and place 
of the making of the' assignment or of the delivery are material 
facts, these should be stated. 50 

d. Consideration. — Generally, in an action by an assignee against 
the debtor, the consideration for the assignment need not be 
averred; 51 but it has been held that where the assignee has a mere 
equitable right, as when the thing assigned possesses no negotiable 
qualities, a consideration for the transfer must be alleged. 52 Where 
the assignee sues the assignor, the consideration for the assignment 
must be alleged. 53 

e. Demand and Notice. — (I.) In Actions Against Debtor. — Where 
the right of action is conditional upon demand upon or notice to the 
debtor, or where by the terms of the chose assigned such notice or 
demand are conditions precedent to liability, plaintiff should allege 



49. Crawford v. Brooke, 4 Gill 
(Md.) 2-13. 

50. Time of assignment is not a 
necessary allegation. U. S. — Buffalo 
Tin Can Co. v. E. W. Bliss Co., 118 
Fed. 106. Cal. — Union Collection Co. 
v. National Fertilizer Co., 2 Cal. App. 
xiii, 82 Pac. 1129. S. C. — Haile v. 
.Richardson, 2 Strobh. L. 114. 

But see Hoppes v. Des Moines City 
R. Co. (Iowa), 126 N. W. 783 (proof 
of delivery) ; Murphy v. Cochran, 1 Hill 
(N. Y.) 339 (where in scire facias, on 
a judgment sued out by an assignee, 
particularity as to time and ;dace of 
assignment was required). 

51. Ark. — Alston v. Whiting, 6 Ark. 
402, also made unnecessary by statute. 
See Kirby's Digest 1904, §518. Colo. 
Welch v. Mayer, 4 Colo. App. 440, 36 
Pac. 613. Fla. — Sammis V. Wightman, 
31 Fla. 10, 12 So. 526, a voluntary as- 
signee can sue in the name of his as- 
signor, notwithstanding statute permit- 
ting the real party in interest to sue 
in his own name. Ky. — Holt v. Thomp- 
son, 1 Duv. 301. But see Malone v. 
Adairville Bank, 6 Ky. L. Rep. 440, 
where V: was held that if the con- 
sideration for the assignment is set 
out, it must be proved and b^ suffi- 
cient. Minn. — Russell V. Minnesota 
Outfit, 1 Minn. 136, where it is esti- 
mated that an allegation of a valua- 
ble consideration might be required to 
be more specKc; also where plaintiff 
alleges a valuable consideration he 
must prove it. N. J. — Gregory v. Free- 

voi. in 



man, 22 N. J. L. 405, where it was 
held not necessary that the assignment 
of a bond, under seal, should show 
any co sideration. N. Y. — Rosenthal 
v. Rudnick, 65 App. Div. 519, 72 N. Y. 
Supp. 804; Murphy v. Cochran, 1 Hill 
339 (where the assignment was under 
seal); Vogel v. Badcock, 1 Abb. Pr. 
176. But see De Forest v. Frary, 6 
Cow. 151, where the chose assigned 
was non-negotiable an allegation of 
consideration was necessary. Tex. — 
Knight v. Halloman, 6 Tex. 153, in an 
action on a promissory note the as- 
signee need not aver the consideration 
for the assignment, although the note 
contained no words of negotiability. 
Vt.— Smilie v. Stevens, 41 Vt. 321, 
where the action was on the promise 
of defendant. See Roberts V. Smith, 
58 Vt. 492, 4 Atl. 709, 56 Am. Rep. 
567, where it as held that the con- 
sideration for the original chose must 
be alleged. 

52. "For value received" insuffi- 
cient. Perkins v. Parker, 1 Mass. 117. 
See also Quigley v. Mexico Southern 
Bank, 80 Mo. 289, 50 Am. Rep. 
503, dictum. 

Consideration May Be Alleged Gen- 
erally. — Where a written assignment 
stated that it was for a valuable con- 
sideration, defendant cannot in an ex- 
ception of no cause of action set up 
that the actual consideration was not 
specifically set forth. Viguerie V. Hall, 
107 La. 767, 31 So. 1019. 

53. Humphrey v. Hughes, 79 Ky. 



ASSIGNMENTS 



129 



the same. 64 As, for instance, where an equitable assignee claims 
priority over a later assignment, an allegation of notice to the deb- 
tor prior to the latter assignment is necessary. 68 And where the ac- 
tion is brought in the name of the assignor and the defendant pleads 
payment to the nominal plaintiff, the plaintiff must allege in his 
replication the fact of notice to the debtor before such payment. 56 

(II.) In Actions Against Assignor. — Where the assignee of an obliga- 
tion is given a right of action against his assignor for breach of 
warranty of collectibility, the declaration for such a breach should 
allege demand upon the obligor and due diligence by the assignee 
in attempting to collect the obligation. 57 

f. Assent or Promise of Debtor. — Where the common law rule pre- 
vails, an equitable assignee suing in his own name must allege a 
promise by the debtor to pay him directly;" but where under the 
statute the assignee may sue in his own name, such promise need 
not be alleged. 59 Also, where a partial assignee is permitted to sue 



487, 3 Ky. L. Rep. 273; Hall V. Smith, 
3 Munf. (Va.) 550. 

"Where the assignment was for 
tobacco sold, but the declaration stated 
that it was for value received, it was 
held that the consideration was stated 
sufficiently. Barksdale v. Fenwick, 4 
Call (Va.) 492. See further infra, III, 
B, 2, d. 

54. Stanton v. Ohio Oil Co. 41 Ind. 
App. 96, 83 N. E. 521. 

Where the debtor's liability under 
assignment is uncertain, demand is a 
condition precedent to the maintenance 
of the action, and must be alleged in 
the complaint. U. S. — Burck V. Taylor, 
152 U. S. 634, 14 Sup. Ct. 696, 38 L. ed. 
578, where an allegation of filing and 
recording and notice thereof, was con- 
strued to be not a charge of actual 
notice. Ark.— Busch v. Prescott, etc. 
R. Co., 76 Ark. 497, 89 S. W. 86; Kan- 
sa City, etc. R. Co. v. Joslin, 74 Ark. 
551, 86 S. W. 435; White r. Cannada, 
25 Ark. 41; Anderson V. Yell, 14 Ark. 
9, 58 Am. Dec. 363. N. Y.— Packard 
r. Lotxp Island R. Co., 5° Misc. 98, 101 
N. Y. Supp. 660 (as where an assign- 
ment was given as security, notice 
thereof to the debtor merely created 
a contingent liability and demand was 
a condition precedent to the mainte 
nnce of the action) ; Murphy v. Coch- 
ran, 1 Hill 33" (notice need not be al- 
leged in first instance, but it is ap- 
propriate in reply to a defense, or may 
be shown under the aeneral issue"! . 
Wis.— Webber v. Roddis, 22 Wis. 61. 

55. Enochs-Havis Lumber Co. r. 
Newcomb, 79 Miss. 462, 30 So. 608. 






56. Shriner v. Lamborn, 12 Md. 170. 

57. Ark. — White v. Cannada, 25 Ark. 
41. Del. — Bennett v. Moore, 5 Ilarr. 
350. Ind. — James v. Nicholson, 6 
Blackf. 288. Ky. — Maze v. Owings- 
ville Bkg. Co., 23 Ky. L. Rep. 574, 63 
S. W. 428; Chambers v. Keene, 1 Met. 
289; Morrison v. Glass, 5 B. Mon. 240; 
Berry v. Kenney, 5 B. Mon. 120; Pass- 
more v. Prather, 9 Dana 57; McMurray 
v. Wood, 9 Dana 45; Sebree v. Harper, 
4 Dana 64; Campbell V. Hopson, 1 A. 
K. Marsh. 228; Thompson r. Caldwell, 
2 Bibb 290; S'pratt r. .McKinney, 1 
Bibb 595; Smallwood V. Woods, 1 Bibb 
542. Md. — Boyer V. Turner 's Admr., 
:? liar. & J. 2S5; Parrott V. Gibson, 1 
liar. & J. 39S. Mo. — Collins V. War- 
burton, 3 Mo. 202. S. C. — Drayton V. 
Thompson, 1 Bay 263. Tex. — National 
Oil Co. v. Tcel.'itl Tex. 586, 68 S. W. 
979; Gooch V. Parker, 16 Tex. Civ. App. 
256, 41 S. W. 662. Va. — Wood 'a 
Admr. v. Duval, 9 Leigh 6; Smith V. 
Triplett, 4 Leigh 590; Johnston V. 
Ilackley, 6 Munf. 448; McClung r. At- 
buckle, 6 Munf. 315; Goodall r. Stuart, 
2 Hen. & M. 105; Barksuale v. Feu- 
wick, 4 Call 492. Eng. — Williams v. 
Price, 1 Sim. ,v S. 5S1, 2 L. J. Ch. 
105. 

As to demand and notice in actions 
against indorsers of negotiable paper, 
see the title "Bills and Notes." 

58. Page r. Danfortli, 53 .Me. 174 
(where the omission of the allegation 
was amendable) ; Smith v. Cottrel, 8 
Baxt. (Tenn.) 62. 

59. Crawford v. Brooke, 4 Gill 
(Md.) 213; Robinson v. Watson, 101 
Mich. 466, 59 N. W. 811. 

vol. in 



130 



ASSIGNMENTS 



in his own name without joining the assignor, the assent of the debtor 
must be alleged. 60 

g. Non-Payment or Non-Performance. — In an action by the as- 
signee, non-payment or non-performance to the assignor before the 
assignment, or to the assignee since the assignment, should be 
alleged. 61 Likewise, in an action against an assignee, non-payment 
or non-performance before and after the assignment must be al- 
leged. 62 

3. Amendments. — Amendments which do not change the cause 
of action and are not prejudicial to the defendant will be allowed. 63 

C. Op Defendant. —1. In General. — In accordance with the gen- 
eral rules of pleading, the defendant may demur, or by plea or answer 
set up any matter tending to invalidate plaintiff's right to maintain 
the action. 64 



60. Grain V. Aldrich, 38 Cal. 514, 
99 Am. Dee. 423. 

Presumed Consent of Debtor. — Where 
there has been a partial assignment, 
it will be presumed, on appeal, in the 
absence of anything to the contrary in 
the record, that the debtor consented. 
Sincell v. Davis, 24 App. Cas. (D. C.) 
218. See further, supra, I, D. 

61. Ky. — Keeton V. Scantland, 
Hard. 149 (assignea must allege non- 
payment of the debt to the assignor). 
N. H. — Whittier v. Whittier, 31 N. H. 
452. N. J. — Gregory v. Freeman, 22 
N. J. L. 405. N. Y. — Miner Litho- 
graphing Co. v. Canary, 20 Misc. 664, 
46 N. Y. Supp. 256. Wis. — Webber 
V. Eoddis, 22 Wis. 61. 

An allegation that the assignment 
was made before the defendant had 
complied with his covenant was held 
to be tantamount to an averment that 
the covenant had not been performed 
with the assignor, in Conn v. Jones, 
Hard. (Ky.) 8. 

62. Gerzebek v. Lord, 33 N. J. L 
240. 

63. A plaintiff suing as assignee 
will not be allowed to amend his com 
plaint so as to declare upon an ac 
count stated immediately between the 
parties without reference to the as- 
signor. Ivy Coal & Coke Co. v. Long, 
139 Ala. 535, 36 So. 722. 

In a suit by a widow upon an in 
surance policy issued in her favor upon 
the life of her husband, the complaint 
cannot be amended on trial by join- 
ing as co-plaintiff his daughter, to 
whom an interest in the policy had 
been assigned prior to her father's 



death. Wood v. Metropolitan Life Ins. 
Co., 96 Mich. 437, 56 N. W. 8. 

Where defendant pleaded that plain- 
tiff was not the real party in interest 
and had assigned his claim, the plain- 
tiff was not allowed to amend his com- 
plaint by alleging a reassignment 
after the action was brought. Staun- 
ton v. Swann, 10 N. Y. Civ. Proc. 12. 

A complaint alleging that the de- 
mand assigned was originally the de- 
mand of the assignor alone may be 
amended to show that the demand be- 
longed to the assignor and plaintiff 
jointly. Eead v. Jaudon, 35 How. Pr. 
(N. Y.) 303. 

Where the action was improperly 
brought in the name of the assignee 
instead of assignor, the defect was 
cured by amendment. Kobertson v. 
Eeed, 47 Pa. 115. But contra, John- 
son v. Mayrant, 1 McCord (S. C.) 484. 

Where the action was brought in the 
name of the assignor for use of as- 
signee, an amendment making the as- 
signee the plaintiff was allowed. Heard 
v. Lockett, 20 Tex. 162. 

A judge should not exercise his dis- 
cretion in joining a person as co-plain- 
tiff without his consent or a hearhig. 
Turquand v. Fearon, L. E. 4 Q. B. D. 
280, 48 L. J. Q. B. 341, 40 L. ff. N. 
S. 191, 27 Wkly. Sep. 396. , 

See, generally, the titles "Amend- 
ments and Jeofails"; "Complaint, 
Petition and Declaration." 

64. In an action of debt on an as- 
signed bond, a demurrer was held nec- 
essary to raise the objection of failure 
to make profert. Shields v. Barden, 
6 Ark. 459. 



vol m 



ASSIGNMENTS 



131 



2. Defenses Against Assignor. — In an action by an assignee a 
debtor may plead any defense which he might have pleaded against 
the assignor, before notice of the assignment, unless, in some way, 
he has precluded himself from that right. 65 

3. Denying Plaintiff's Interest or Right To Sue. — Unless changed 
by statute, where the action is brought in the name of the holder of 
the legal title to the chose, as by the assignor for the benefit of the 
assignee, it is no defense that the plaintiff is a nominal party having 
no real interest and that the beneficial interest is in others.* 8 Thus, 
in such a situation an answer denying plaintiff's beneficial interest 
only is of no avail. 67 Where, however, by statute, the real party in 
interest must sue, the defendant can plead that the plaintiff is not 
such a party, 68 but he must set out all the facts on which he bases 
his defense. 69 He can also specifically deny the authority of the holder 



The objection that assignor was not 
made a party to the action should be 
raised by demurrer, or motion to bring 
him in. Grain v. Aldrich, 38 Cal. 514, 
99 Am. Dec. 423. 

A failure of the complaint to refer 
to a copy of an account and its as- 
signment should be raised by demur- 
rer. Lassiter v. Jackman, 88 Ind. 118. 
It cannot be shown that an assign- 
ment is colorable unless such fact is 
pleaded. Lesh v. Meyer, 63 Kan. F24, 
66 Pac. 245, where the execution of 
the assignment was admitted. 

65. U. S. — Suttivan v. Ayer, 174 
Fed. 199. Mich. — Spinning v. Sulli- 
van, 48 Mich. 5, 11 N. W. 758. Mo. — 
Ewing v. Miller, 1 Mo. 234. N. H. — 
Thompson V. Emery, 27 N. H. 269. 
N. C — McKinnie v. Rutherford, 21 
N. C. 14. 

Between the original parties the de- 
fense of illegality in the original con- 
tract was held good, notwithstanding 
an assignment to a third person. Fales 
v. Mayberry, 2 Gall. 560, 8 Fed. Cas. 
No. 4,622; Western Union Tel. Co. V. 
Ryan, 126 Ga. 191, 55 S. E. 21 (as- 
signment given as security for a 
usurious loan). 

66. Labaume v. Sweeney, 17 Mo. 
153; Carr v. Gomez, 9 Wend. (N. Y.) 
653. And see Chambers v. Webster, 69 
App. Div. 546, 75 N. Y. Supp. 31, where 
it was held proper to inquire whether 
the assignor held the chose in trust 
for someone else, as bearing on the 
validity of the assignment. 

Where suit is brought in the name 
of the legal plaintiff for the use of 



the assignee and defendant does not 
deny that the whole demand is due 
and unpaid, it is no concern of de- 
fendant whether the assignor or as- 
signee receives the proceeds of the 
judgment when recovered, as he is pro- 
tected from further suit. Kamber V. 
Becker, 27 Pa. Super. 266. See also 
Continental, etc. Co. v. Van Winkle, etc. 
Wks. (Tex. Civ. App.), 131 S. W. 415. 

67. HI. — Chadsey v. Lewis, 6 111. 
153; McHenry v. Ridgely, 3 111. 309, 
35 Am. Dec. 110. Mo. — Boyer v. Hamil- 
ton, 21 Mo. App. 520, where it was no 
defense that others claimed the fund. 
Tex. — Knight V. Holloman, 6 Tex. 153. 

See also supra, I, A, 2, a; I, C, 4; 
II, A, 4. 

68. Plaintiff Not Real Party in In- 
terest. — Lawrence V. Long, 18 Ind. 
301; Crum v. Stanley, 55 Neb. 351, 
75 N. W. 851; Henley r. Evans, 54 Neb. 
187, 74 N. W. 578; Hoagland V. Van- 
Etten, 22 Neb. 681, 35 N. W. 869. 

If a debtor in an action by the as- 
signor wishes to set up the assign- 
ment as a defense, he must allege that 
the plaintiff is not the real party in 
interest and has not title to the claim. 
Selleck v. Manhattan Fire Alarm Co., 
117 N. Y. Supp. 964. 

A court of law will not recognize a 
partial assignment as a defense to an 
action bv the assignor against the 
debtor. City of Pueblo v. Dye, 44 Colo. 
35, 96 Pac. 969; Thiel v. John Week 
Lumb. Co., 137 Wis. 272, 118 N. W. 
802. See also supra, I, C, 4; II, A, 4. 

69. Ind. — Treadway V. Cobb, 18 
Ind. 36 (where sufficient facts showing 

vol m 



132 



ASSIGNMENTS 



of the legal title to sue on his own account, after he has assigned 
all beneficial interest. 70 He can also put in issue the authority of a 
beneficiary to sue in the name of the holder of the legal title. 71 
Where an action is brought by one who had parted with his interest 
at the time the action was commenced, it has been held that a sup- 
plemental complaint will be permitted to be filed on reassignment to 
plaintiff. 72 

4. Fact of the Assignment. — As the plaintiff's right of action will 
usually depend upon the fact of assignment, which he must allege 
and prove, it is held by some cases that the defendant may by gen- 
eral denial put such fact in issue ; 73 by other cases it is held that 
the assignment should be specially denied. 74 In some jurisdictions 



a want of interest in plaintiff were 
required); Swift V. Ellsworth, 10 Ind. 
205, 71 Am. Dec. 316 (want of bene- 
ficial interest in the plaintiff should 
be pleaded). la. — Cottle v. Cole, 20 
Iowa 4S1. Kan. — Lesh v. Meyer, 63 
Kan. 524, 66 Pac. 245, th* fact that 
the assignment is colorable and trans- 
ferred no real interest to plaintiff 
should be specially pleaded. Mass. — 
Eogers v. Abbot, 206 Mass. 270, 92 N. 
E.' 472, waiver by not objecting. N. Y. 
Selleck V. Manhattan Eire Alarm Co., 
117 N. Y. Supp. 964 (where plaintiff was 
not the real party in interest because 
he had assigned his interest in the claim, 
this fact had to be pleaded) ; Smith v. 
New York Cooperage Co., 35 Misc. 203, 
71 N. Y. Supp. 479 (where the fact of 
assignment and that the plaintiff was 
the real party in interest were denied 
separately, the second defense was held 
bad because it was already involved in 
the first) ; Russell v. Clapp, 4 How. 
Pr. 347. 

70. Moore V. Spiegel, 143 Mass. 413, 
9 N. E. 827; Trezevant v. McNeal, 2 
Humph. (Tenn.) 352 (assignor was al- 
lowed to reply that the suit was for 
tbe benefit of the assignee). 

Where in an action by an assignee 
the defendant pleaded a former re- 
covery by the assignor, it was held 
that the defendant, having had notice 
of the assignment, should have pleaded 
in the former suit the fact of assign- 
ment and that the assignor had parted 
with all beneficial interest. Dawson V. 
Coles, 16 Johns. (N. Y.) 51. 

71. Field V. Weir, 28 Miss. 56; 
Thompson v. Cartwright, 1 Tex. 87, 46 
Am. Dec. 95. See also supra, I, A, 2, a. 

72. Walsh v. Woarms, 109 App. Div. 

vol. in 



166, 95 N. Y. Supp. 824; Staunton V. 
Swann, 10 N. Y. Civ. Proc. 12. 

73. Ky. — Kincaid v. Higgins, 1 
Bibb 396. N. Y. — Torrey v. Standish, 
61 Hun 623, 16 N. Y. Supp. 5, where 
the admission of the indebtedness pre- 
cluded the defendant from denying the 
assignment. Ohio. — McMurty v. Camp- 
bell, 1 Ohio 262. Va. — Lynchburg 
Iron Co. V. Tayloe, 79 Va. 671 (holding 
that, in equity, an assignee should 
show and prove the assignment, though 
it is not denied nor proof of it called 
for) ; Corbin v. Emmerson, 10 Leigh 
663. Wis. — Johnson v. Vickers, 139 
Wis. 145, 120 N. W. 837, 21 L. R. A. 
(N. S.) 359; Hilliard v. Wisconsin Life 
Ins. Co., 137 Wis. 208, 117 N. W. 999. 

In an action of assumpsit by the 
assignee against the assignor of a 
promissory note, a special plea deny- 
ing the assignment was held bad, be- 
cause it amounted to the general issue. 
Scribner v. Bullitt, 1 Blaekf. (Ind.) 
112. 

74. Ark. — Jordan v. Newborn, 8 
Ark. 502. Ind. — Morrison V. Ross, 113 
Ind. 186, 14 N. E. 479; Utter v. Vance, 
7 Blaekf. 514 (the plea of non est 
factum puts nothing in issue but the 
execution of the instrument) ; Gully v. 
Reny, 1 Blaekf. 69. Ky. — McConnell 
v. Morrison, 1 Litt. 206, Smith v. 
Shields, 2 Bibb 328. Mo. — Ragland V. 
Ragland, 5 Mo. 54, the pleas of non est 
factum, payment and set-off did not put 
the assignment in issue. Eng. — 
Smithey v. Edmondson, 3 East 22, 102 
Eng. Reprint 504; Smith v. Broomhead, 
7 T. R. 300, 101 Eng. Reprint 986. 

If defendant pleads the general is- 
sue it is held that he merely denies 
the assignee's right to sue, and not his 



ASSIGNMENTS 



133 



the verification of defendant's plea by an oath is essential. 75 

5. Validity of Assignment. — Where the plaintiff's right to sue de- 
pends upon a valid assignment he must allege it, and consequently 
it has been held that a general denial is sufficient to put such 
allegation in issue. 70 

6. Consideration. — Where an allegation of consideration for the 
assignment or for the chose itself is essential, the defendant may by 
demurrer raise the sufficiency of the complaint in this respect, 77 



capacity. Brown v. Curtis, 128 Cal. 
193, 60 Pac. 773. 

Denial of assignment on informa- 
tion and belief was held in Bead v. 
Buffum, 79 Cal. 77, 21 Pac. 555, 12 Am. 
St. Rep. 131, to be sufficient. 

75. Ala. — Bancroft V. Paine, 15 
Ala. 834; Tarver V. Nance, 5 Ala. 712. 
Ark. — Winer v. Bank of Blytheville, 
89 Ark. 435, 117 S. W. 232; School 
Dist. v. Reeve, 56 Ark. 68, 19 S. W. 
106 (but the statute covers only as- 
signments in writing); Jordan v. New- 
born, 8 Ark. 502 (where it was held 
that the execution of an assignment 
cannot be denied except by a plea veri- 
fied by an oath) ; Alston V. Whiting, 6 
Ark. 402. Ind. — Lassiter v. Jackman, 
88 Ind. 118 (where a copy of the ac- 
count and the assignment thereof fol- 
lowed the complaint in the record, but 
was not referred to or identified there- 
in, it was held that an objection to the 
complaint on that ground was waived 
by defendant's failure to demur there- 
to); Beagles V. Sefton, 7 Ind. 496 (as- 
signment of note or judgment should 
be denied under oath); Hooker v. 
State, 7 Blackf. 272. la. — Edmonds 
V. Montgomery, 1 Iowa 143. Kan. — 
Lesh v. Meyer, 63 Kan. 524, 66 Pac. 
245; School Dist. V. Carter, 11 Kan. 
445 (covers only written assignments). 
Ky. — Burks v. Howard, 2 B. Mon. 66, 
which relates to assignments of bonds. 
Tex. — Park V. Glover, 23 Tex. 469; 
Carpenter 17. Historical Pub. Co. (Tex. 
Civ. App.), 24 S. W. 685 (statute re- 
lates only to assignments and indorse- 
ments of written instruments, and does 
not apply where the action is not 
brought on the instrument and where 
the latter is used only as title in an 
action of trespass). 

76. Wood V. Decoster, 66 Me. 542, 
citing Lawrence v. Chase, 54 Me. 196 
(where it was held that the validity 
of the assignment should be put in is- 
sue by plea or by a brief statement); 



Johnson r. Vickers, 139 Wis. 145, 120 
N. W. 837, 131 Am. St. Rep. 1046, 21 
L. R. A. (N. S.) 359. 

Where the assignor and equitable as- 
signee are made plaintiffs, the defend- 
ant cannot question the validity of the 
assignment, that issue being confined 
to the co-plaintiffs. Fulham v. Mc- 
Carthy, 1 H. L. Cas. 703, 39 Eng. Re- 
print 937. 

Where in an action by an assignee 
against a bank, the latter, being a 
stranger to the assignment, cannot 
plead that it was voluntary and there- 
fore invalid in equity. Walker i". 
Bradford Old Bank, L. R. 12 Q. B. 
Div. 511. 

Where a suit is in the name of the 
legal plaintiff to the use of the assignee 
and defendant does not deny that the 
whole demand is due and unpaid, it 
is no concern of defendant whether the 
assignment was bona fide or not. 
Kamber v. Becker, 27 Pa. Super. 266. 

Want of consideration is no defense 
to an action by the assignee on the 
assigned chose (Levins V. Stark [Ore. J, 
110 Pac. 980), or that the considera- 
tion for the assignment was a usurious 
loan (Western Union Tel. Co. v. Ryan, 
126 Ga. 191, 55 S. E. 21). 

Fraud in the Assignment. — Where 
fraud in the assignment is relied on, 
all the elements thereof must be al- 
leged, as in Cox V. Stillman, 59 Mule. 
248, 112 N. Y. Supp. 328, where it was 
held that the fact of intention to de- 
fraud should be alleged. Pearce r. 
Wallis, Landes & Co. (Tex. Civ. App.), 
124 S. W. 496. 

An allegation of colorable assignment 
for the purpose of conferring juris- 
diction on the court states no defense 
on the merits. Pearce V. Wallis, 
Landes & Co. (Tex. Civ. App.), 124 
S. W. 496. 

77. Driscoll C. Driscoll, 143 Cal. 528, 
77 Pac. 471; Colorado Fuel & Iron Co. 
V. Kidwell, 20 Colo. App. 8, 76 Pac. 

vol. in 



134 



ASSIGNMENTS 



or may by general denial put in issue an alleged consideration. 78 
But usually want of consideration for the assignment is no defense. 79 

7. Payment. — The defendant may plead payment, but must allege 
to whom it was made. 80 

8. Want of Notice, -r- Where the defendant pleads want of notice, 
he must allege some consequential injury. 81 

IV. ISSUES AND PROOF. — A. In General. — In accordance 
with the usual rul.es of practice, an assignee must prove his cause of 
action. 82 Necessary averments should be supported by adequate 
proof, 83 and sometimes, although they are not denied in the an- 



922; Levins v. Stark (Ore.), 110 Pac. 
980. 

A creditor's bill alleging the con- 
sideration for the assignment is not de- 
murrable on the ground that the con- 
sideration as alleged is inadequate. 
J aim v. Champagne Lumb. Co., 147 
Fed. 631. 

78. See supra, III, C, 4; HI, C, 5; 
III, C, 6. 

79. Cal. — Moore v. Waddle, 34 Cal. 
145; Caulfield v. Sanders, 17 Cal. 569. 
Colo. — Forsyth V. Eyan, 17 Colo. App. 
511, 68 Pac. 1055; Kobinson Eeduction 
Co. v. Johnson, 10 Colo. App. 135, 50 
Pac. 215; Welch v. Mayer, 4 Colo. App. 
44*0, 36 Pac. 613. Fla. — Sammis v. 
Wightman, 31 Fla. 10, 12 So. 526. Ga. 
Western Union Tel. Co. v. Ryan, 126 
Ga. 191, 55 S. E. 21. Ind. — Pugh v. 
Miller, 126 Ind. 189, 25 N. E. 1040; 
Morrison V. Ross, 113 Ind. 186, 14 
N. E. 479. la. — Wardner, etc. Co. V. 
Jack, 82 Iowa 435, 48 N. W. 729; 
Gere v. Council Bluffs Ins. Co., 67 
Iowa 272, 23 N. W. 137, 25 N. W. 159; 
Whittaker v. Johnson County, 10 Iowa 
161. Me. — Norris V. Hall, 18 Me. 332. 
Mass. — Phipps v. Bacon, 183 Mass. 5, 
66 N. E. 414. Mich. — Hicks v. Steel, 
126 Mich. 408, 85 N. W. 1121; Coe v. 
Hinkley, 109 Mich. 608, 67 N. W. 915. 
Mo. — Young v. Hudson, 99 Mo. 102, 
12 S. W. 632; Roth v. Continental Wire 
Co., 94 Mo. App. 236, 68 S. W. 594. 
N. Y. — Rosenthal V. Rudnick, 65 App. 
Div. 519, 72 r. Y. Supp. 804; Guy V. 
Craighead, 6 App. Div. 463, 39 M. ¥. 
Supp. 688; Walcott v.'Hilman, 23 Misc. 
459, 51 N. Y. Supp. 358; VanDyke V. 
Gardner, 22 Misc. 113, 49 N. Y. Supp. 
328; Toplitz v. King Bridge Co., 20 
Misc. 576, 46 N. Y. Supp. 418; Deach 
V. Perry, 53 Hun 638 (memo.), 6 N. Y. 
Supp. 940; Moore v. Robertson, 25 Abb. 
N. C. 173; Burtnett v. Gwynne, 2 Abb. 



Pr. 79; Allen v. Brown, 51 Barb. 86, af- 
firmed, 44 N. Y. 228; Richardson v. 
Mead, 27 Barb. 178; Beach v. Raymond, 
2 E. D. Smith 496. Ore. — Levins v. 
Stark, 110 Pac. 980; King v. Miller, 
53 Ore. 53, 97 Pac. 542; Gregoire v. 
Rourke, 28 Ore. 275, 42 Pac. 996. S. 
D. — Dewey v. Komar, 21 S. D. 117, 
110 N. W. 90. Tex. — Doty v. Moore 
(Tex. Civ. App.), 113 S. W. 955; St. 
Louis S. W. R. Co. v. Jenkins (Tex. 
Civ. App.), 89 S W. 1106. Utah.— 
Rutan v. Huck, 30 Utah 217, 83 Pac. 
833. W. Va. — Wallace v. Leroy, 57 
W. Va. 263, 50 S. E. 243, 110 Am. St. 
Rep. 777. Wis. — Chase v. Dodge, 111 
Wis. 70, 86 N. W. 548. Eng.— Wiesener 
v. Rackow, 76 L. T. N. S. 448; Walker 
v. Bradford Old Bank, L. R. 12 Q. B. 
D. 511. 

80. Willard v. Tillman, 19 Wend. 
(N. Y.) 358. 

81. Kinckerbocker Trust Co. v. 
Coyle, 139 Fed. 792; Walker v. Sar- 
geant, 14 Vt. 247 (where the failure 
to give notice to the defendant did not 
cause any injury, it was held that a 
plea alleging no notice raised no ma- 
terial issue). 

82. Colo. — Chicago, etc. R. Co. v. 
Provolt, 42 Colo. 103, 93 Pac. 112P, 
16 L. R. A. (N. S.) 587, assignee was 
required to prove the amount due him. 
la. — Doty v. Braska, 126 N. W. 1108; 
Hoppes v. Des Moines City R. Co., 126 
N. W. 783. La. — Yerger v. Murdoek, 
52 So. 1028. N. J. — New Jersey Prod- 
uce Co. v. Gluck (N. J. L.), 74 Atl. 
443. N. Y. — Marandino v. Brown & 
Co., 120 N. Y. Supp. 744. 

83. U. S. — Conant v. Wills, 1 Mc- 
Lean 427, 6 Fed. Cas. No. 3,087. Ark. 
Shields v. Barden, 6 Ark. 459; Alston 
V. Whiting, 6 Ark. 402; Beebe v. Real 
Estate Bank, 4 Ark. 124; McLain v. 
Onstott, 3 Ark. 478; Kirby's Dig., 



vol. m 



ASSIGNMENTS 



135 



swer. 84 But generally only the points put in issue need be proved. 86 

B. General Issue. — Evidence as to the fact of assignment and 
its validity is admissible under the general issue. 88 Lack of consid- 
eration for the assignment cannot be shown under the general issue, 
except in cases where consideration is an essential allegation in the 
declaration. 87 Likewise, the issue of fraud is usually not involved 
under a general denial. 88 

C. Variance. — Material variance between the allegations of as- 
signment and the proof offered is fatal to the action. 89 But imma- 



1904, § 517 (tne assignment need not 
be proved unless den ; ed under oath), 
la. — Doty v. Braska, 126 N. W. 1108, 
genuineness of assignor '3 signature. 
Mass. — Fosa v. Lowell x'ive Cents Sav. 
Bank, 111 Mass. 285. Mich. — Seeley 
v. Albrecht, 41 Mich. 525, 2 N. W. 667, 
where the proof did not support the 
allegation of assignment by joint 
owners. Mo — Quigley v. Mexico Soath- 
ern Bank, 80 Mo. 289; Kuhn V. 
Schwartz, 33 Mo. App. 610 (holding 
parol proof of written assignments in- 
adequate). N. H. — Pierce v. Nashua 
F. Ins. Co., 50 N. H. 297, 7 Am. Rep. 
235; Barnes v. Union Mut. F. Ins. Co., 
45 N. H. 21; i-hepherd V. Union Mut 
F. Ins. Co., 38 N. B. 232. N. Y.— 
Burke v. New York, 7 App. Div. 128, 
40 N. Y. Supp. 81, where an assign- 
ment was denied admission on trial 
that it was executed meets the deninl 
in the answer). Va. — Anderson v. De- 
Soer, 6 Gratt. 363 (holding that where 
no objection is made the presumption 
is that the date of the assignment is 
correct); Tennent's Heirs v. Pattons, 
6 Leigh 196; Cunningham r. Herndon, 
2 Call 530. 

84. Lynchburg Iron Co. v. Tayloe, 
79 Va. 671; Corbin v. Emmerson, 10 
Leigh (Va.) 663. 

Admission in pleading of adverse 
party dispenses with proof. Cbicker- 
ing v. Fullerton, 90 111. 520. See also 
Coffin v. Smith (S. D.), 128 N. W. 805. 

Admission on trial dispenses with 
proof. Burke r. New York, 7 App. 
Div. 128, 40 N. Y. Supp. 81. 

85. Ala. — Wood v. Brewer, 66 Ala. 
570, holding that where the plea does 
not deny the assignment, evidence 
thereof is inadmissible. 111. — Barstow 
v. McLachlan, 99 111. 641. Ky.— Craw- 
ford v. Duncan, 6 Ky. L. Rep. 734. 
Mont. — General Elec. Co. V. Black, 19 
Mont. 110, 47 Pac. 639. N. Y. — Burke 
v. New York, 7 App. Div. 128, 40 N.I 



Y. Supp. 81. Tex. — Gulf, etc. R. Co. 
v. Hodge, 10 Tex. Civ. App. 543, 30 
S. W. 829, holding that where the 
ownership of the chose is put in issue, 
proof of the assignment of the cause 
of action is inadmissible. 

Under a mere denial proof of in- 
validity is inadmissible. Clark v. 
Geery, 8 Jones & S. (N. Y.) 227. 

On denying the allegation of assign- 
ment, defendant may disprove plain- 
tiff's title by showing a previous as- 
signment. Dom.i v. Metropolitan EI. 
R. Co., 14 N. Y. St. 264. 

86. See supra, III, B, 2, b; III, C, 
5. 

Where the statute required an as- 
signment to be made bona fide, the de- 
fendant may under the general issue 
show that it was not so made. Craw- 
ford v. Brooke, 4 Gill (Md.) 213. 

87. In an action by an assignee of 
certain claims, evidence under the 
general issue to prove that a third 
person and not the plaintiff furnished 
the consideration was excluded as not 
within the issues. Jacobs V. Mitchell, 
2 Colo. App. 456, 31 Pac. 235. To 
the same effect, Wolff V. Mathews, 39 
Mo. App. 376. See also supra, III, B, 
2, d. 

88. In an action by an assignee of 
an account due a corporation, assigned 
by the superintendent in payment of 
a debt of the corporation, in which the 
answer was a general denial, the court 
found that the assignment constitute! 
a fraudulent preference. It was held 
that such finding was outside the is- 
sues, as the general denial put in is- 
sue only the fact of the indebtedro-s 
and the assignment io plaintiff. 
McKiernan v. Lenzen, 56 Cal. 61. See 
also Adam v. Hogden, 1 T. B. Mon. 
(Kv.) 87; McSmithee's Admr. v. 
Feamster, 4 W. Va. 673. 

89. U. S. — Home ft Hoyle, 28 Fed. 
743. Conn. — Clark f. Mix, 15 Conn. 



vol. m 



136 



ASSIGNMENTS 



terial variance between pleading and proof which does not pre- 
judice the defendant may be cured by amendment. 90 When put in 
issue, the assignment, as alleged, must be proved. 91 

D. Burden of Proof. — The general rules as to burden of proof 
apply. A party alleging an assignment which is put in issue must 
prove it. 02 But the party relying upon the incompetency of the as- 



151. Mass. — Hobart v. Andrews, 21 
Pick. 526, where an absolute assign- 
ment is alleged and a conditional one 
proved, the variance is fatal. Mich. — 
Seeley v. Albrecht, 41 Mich. 525, 2 
N. W. 667. 

The date of an assignment need not 
be proved as alleged, it being suffi- 
cient to show an assignment before 
the commencement of the action. Can- 
field v. Mcllwaine, 32 Md. 94; Haile 
v. Eichardson, 2 Strobh. (S. C.) 114. 

It is no variance where the declara- 
tion does not .. lege mesne assignments 
but the proof shows that the instru- 
ment a-ssigned in blank passed through 
the hands of several. Tibbets V. Ger- 
rish, 25 N. H. 41, 57 Am. Dec. 307. 

90. Eead v. Jaudon, 35 How. Pr. 
(N. Y.) 303, (where the assignment of 
a 'joint claim was alleged and the 
assignment of a separate and sole 
claim proved) ; Toplitz v. King Bridge 
Co., 20 Misc. 576, 46 N. Y. Supp. 418, 
where plaintiff sued as the assignee 
of a corporation and the evidence 
showed an assignment not from the 
corporation but from its receivers. 
But in Kibler v. Brown, 114 Fed. 1014, 
an allegation of assignment from E. 
G. Church & Co. was not supported 
by proof that the assignment was 
from E. G. Church. 

91. 111. — Hall v. Freeman, 59 111. 
55. Ind. — Lassiter V. Jackman, 88 
Jnd. 118, but the plea putting the as- 
signment in issue must be under oath. 
But see Arnold v. Sturges, 5 Blackf. 
2~><>. To the same effect Kirby's Di- 
gest, Ark. St., 1904, §517. Ky. — 
Walter v. Clark, 6 J. J. Marsh. 629. 
La. — Wadsw or^h V. New Orleans, 46 
La. Ann. 545, 15 So. 202; Terry V. 
Hennen, 4 La. Ann. 458. Md. — Lamar 
C. Mauro, 10 Gill & J. 50, need not 
prove formal assignment where debtor 
recognized the assignee's ownership 
by making part payment. Mo. — Turner 
l\ Mayden, 33 Mo. App. 15. N. J. — 
Nixon v. Dickey, 3 N. J. L. 252. N. 
Y Vestner v. Findlay, 10 Misc. 410, 



31 N. Y. Supp. 138, 63 N. Y. St. 519; 
Buffalo Ice Cr r. Cook, 9 Misc. 434, 
29 N. Y. Supp. 1057, 61 N. Y. St. 731; 
Torrey v. Standish, 16 N. Y. Supp. 5, 
40 N. Y. St. 713. Ohio. — Baltimore, 
etc. K. Co. x. Gibson, 41 Ohio St. 145. 
Tex. — Childress v. Smith, 90 Tex. 610, 
40 S. W. 389, 3C S. W. 518. 

A written assignment, though neces- 
sary, need not be proved where op- 
posite party alleges a transfer of a 
mortgage. Ga. — Burgwyn Bros. To- 
bacco Co. V. Bentley, 90 Ga. 508, 16 
S. E. 216. Md. — Harris V. Jaffray, 
3 Har. & J. 543. S. C. — Moses v. Hat- 
field, 27 S. a 324, 3 S. E. 538. Va. 
Tennent's Heir* v. Pattons, 6 Leigh 
196. 

But where an assignment is unneces- 
sarily in writing, cral evidence of the 
same is admissible. New Jersey Prod- 
uce Co. v. Gluck (N. J. L.), 74 Atl. 
443. 

92. U. S. — See Tebbotts V. United 
States, 5 Ct. CI. (307. Ala. — Jarrell 
V. Lillie, 40 Ala. 271. Cal. — Calloway 
V. Oro Min. Co., 5 Cal. App. 191, 89 
Pac. 1070. 111. — Wyman v. Snyder, 
112 111. 99, 1 N. E. 469, where an 
actual assignment, as distinguished 
from a mere promise to pay, had to 
be proved. Ind. — Stair V. Richardson, 
108 Ind. 429, 9 N. E. 300. la.— Hoppes 
V. Des Moines City R. Co., 126 N. W. 
783; Seymour v. Aultman, 109 Iowa 
297, 80 N. W. 401; Hay v. Frazier, 49 
Iowa 454. Ky. — Domestic Sewing 
Machine Co. v. Murphy, 15 Ky. L. 
Eep. 815. Me. — National Shoe, etc. 
Bank V. Cooling, 87 Me. 337, 32 Atl. 
967» Mich. — Powell v. Williams, 99 
Mich. 30, 57 N. W. 1041; Blackwood 
V. Brown, 32 Mich. 104. Mo. — Quig- 
ley V. Mexico Southern Bank, 80 Mo. 
289 (as to negotiable note); Turner 
V. Ilayden, 33 Mo. App. 15. N. J.— 
Allen V. Pancoast, 20 N. J. L. 68; 
Nixon v. Dickey, 3 N. J. L. 252. N. 
Y. — Bclden V. Bdden, 139 App. Div. 
437, 124 N. Y. Supp. 225; St. John 



vol. in 



'ASSIGNMENTS 



137 



signor, 98 or fraud in a previous assignment, 94 or a prior assignment 
of the chose, 95 has the burden of proving the same. 

Notice to Debtor. — "Where defendant pleads and proves payment 
to the assignor, the plaintiff has the burden of proving notice of 
the assignment to the debtor prior to such payment." 8 

Promise of Debtor. — An assignee relying on a promise of the debtor 
to pay him has the burden of proving it. 97 

E. Questions for Jury. — Several questions peculiar to assign- 
ments may be for the jury's determination, 08 as, for example, the 
issue of fact as to the assignment; 99 whether there has been an 
abandonment of the assignment; 1 whether the assignment was in- 
tended to be absolute or conditional ; 2 whether the transaction was 
intended as an equitable assignment; 3 whether an equitable assign- 
ment was in good faith. 4 Where there is only parol evidence of the 



V. Coates, 63 Hun 460, 18 N. Y. Supp 
419, 45 N. Y. St. 431, 140 N. Y. 634, 
35 N. E. 891. Ohio. — Baltimore, etc. 
R. Co. V. Gibson, 41 Ohio St. 145; 
Piatt V. St. Clair's Heirs, Wright 526 
(holding that a debtor pleading pay- 
ment of a judgment to an assignee has 
the burden of proving the assignment 
to the person paid). Va. — Lynchburg 
Iron Co. v. Tayloe, 79 Va. 671; Cor- 
bin v. Emmerson 10 Leigh 663. Wis. — 
Johnson v. Vickers, 139 Wis. 145, 120 
N. W. 837, 131 Am. St. Rep. 1046, 21 
L. R. A. (N. S.) 359. 

Genuineness of Assignor's Signature. 
The burden of proving the same is on 
the assignee when the answer puts it 
in issue. Doty v. Braska (Iowa), 126 
N. W. 1108. 

93. Wood v. Neeley, 7 Baxt. (Tenn.) 
586. 

94. Daily's Exr. r. Warren, 80 Va. 
512. See Belden v. Belden, i39 App. 
Div. 437, 124 N. Y. Supp. 225, where 
the assignee had the burden of prov- 
ing good faith. 

95. Conant V. Wills, 1 McLean 427, 
6 Fed. Cas. No. 3,087. 

96. HI. — Burritt V. Tidmarsh, 1 111. 
App. 571. N. Y. — Heermans v. Ells- 
worth, 64 N. Y. 159. S. C. — Jervey 
v. Stauss, 11 Rich. 376, where a set- 
off against assignor was pleaded. 

97. Auerbach v. Pritchett, 58 Ala. 
451; Shepherd V. Union Mut. F. Ins. 
Co., 38 N. H. 232. 

98. la. — Gary r. Northwestern Mut. 
Aid Association, 87 Towa 25, 53 N. 
W. 1086. Mont. — General Electric 
Co. v. Black, 19 Mont. 110, 47 Pac. 
639, where answer merely denies the 
assignment, tha* issue alone goes to 



the jury. N. O. — Thompson v. Os- 
borne, 152 N. C. 408, 67 S. E. 1029. 

99. Ga. — Haas v. Old Nat. Bank, 
91 Ga. 307, 18 S. E. 188. la. — Hoppes 
V. Des Moines City R. Co., 126 N. 
W. 783. Mass. — Barry v. Curlev, 202 
Mass. 42, 88 N. E. 437. Mo. — Horner 
v. Missouri Pacific R. Co., 70 Mo. App. 
285. N. Y. — Liberty Wall Paper Co. 
v. Stone Wall Paper Mfg. Co., 59 App. 
Div. 353, 69 N. Y. Supp. 355. 

Fact of notice of assignment is a 
question for the jury. Jordan v. Gil- 
len, 44 N. H. 424. 

Eefusal to instruct as to effect of 
transfer is not erroneous. Saltmarsh 
v. Bower, 22 Ala. 221. 

1. Wilson v. Pearson, 20 111. 81. 
Whether the obligor waived the 

right to personal performance by the 
assignor is for the jury. Pulaski 
Stove Co. v. Miller's Creek Lumb. Co., 
138 Ky. 372, 128 S. W. 96. Likewise, 
whether the non-assignability of a con- 
tract has been waived. Pulaski Stove 
Co. r. Miller's Creek Lumb. Co., 
supra. 

2. Mo. — Horner r. Missouri Pac. 
R. Co., 70 Mo. App. 285, where issue 
was submitted to the jury, although 
the evidence was all on one side. Pa. 
Schwartz v. Ilersker, 140 Pa. 550, 21 
Atl. 401. W. Va. — Protzman's Exr. 
v. Joseph, 65 W. Va. 788, 65 S. E. 
461. 

3. Haas v. Old Nat. Bank, 91 Ga. 
307, 18 S. E. 188; Collins, etc. Co. v. 
United States Ins. Co., 7 Tex. Civ. 
App. 579, 27 S. W. 147. 

4. Gumbert v. Logan, 13 Pa. Super. 
622; Pearce v. Wallis, Landes & Co. 
(Tex. Civ. App.), 124 S. W. 496. 

Vol. Ill 



133 



ASSIGNMENTS 



questions in issue, they are determined by the jury. 6 

F. Questions for Court. — Whether the assignment is valid is a 
question for the court; 6 and where all the evidence is written and 
uncontradicted, the fact as well as the validity of the assignment 
is to be determined by the court. 7 



5. Ga. — Haas v. Old Nat. Bank, 
91 Ga. 307, 18 S. E. 188. la-. — Gary 
V. Northwestern Mut". Aid Assn., 87 
Iowa 25, 53 N. W. 1086, as to consid- 
eration. N. H. — Jordan v. Gillen, 44 
N. H. 424. N. Y. — Liberty Wall 
Paper Co. v. Stoner Wall Paper Mfg. 
Co., 59 App. Div. 353, 69 N. Y. Supp. 
355. Pa. — Schwartz v. Hersker, 140 
Pa. 550, 21 Atl. 461. Wis. — Blackman 
V. Dunkirk, 19 Wis. 183. 

6. Mi. — Myers V. King, 42 Md. 65. 

Vol. Ill 



Neb. — Maul v. Drexel, 55 Neb. 446, 
76 N. W. 163. Tex. — Wood v. Gulf, 
etc. E. Co., 15 Tex. Civ. App. 322, 40 
S. W. 24. 

The scope of the assignment may 
be a question for the court. Eogers 
V. Abbot, 206 Mass. 270, 92 N. E. 472. 

7. la. — Snyder v. Kurtz, 61 Iowa 
593, 16 N. W. 722. N. C. — Clark 
v. Edney, 28 N. C. 50. Tex. — Wood 
v. Gulf, etc. K. Co., 15 Tex. Civ. App. 
322, 40 S. W. 24. 



ASSIGNMENTS OF ERROR.— See Error, Assignments of. 



ASSISTANCE, WRITS OF 



I. ORIGIN AND DEFINITION, 140 

II. NATURE OF WRIT AND WHEN ISSUED, 140 

A. Summary Process, 140 

B. Issuance Rests in Discretion, 141 

C. Cannot Be Used To Try Title, 142 

HI. WHO MAY HAVE WRIT, 143 

A. Purchasers Though Not Parties, 143 

B. Purchasers at Foreclosure Sales, 144 

C. Successful Party in Divorce Proceedings, 144 

D. Petitioner Under Burnt Records Acts, 145 

IV. AGAINST WHOM ISSUED, 145 

V. PROCEEDINGS TO OBTAIN, 148 

A. Facts Necessa-ry To Secure Writ, 148 

B. Necessity for Notice, 149 

C. II earing of Application, 151 

1. What Considered, 151 

2. Standing of Third Parties, 151 

3. Form of Objections, 152 

4. Pendency of Another Proceeding , 152 

VI. HOW ISSUED, 152 

A. In General, 152 

B. Irregularity in Form of, 154 

C. Issuance of Alias Writ, 154 

VII. HOW EXECUTED, 154 

Vni. RELIEF AGAINST WRIT, 155 

A. By Appeal, 155 

B. By Order Setting Aside, 156 

1. General Rule, 156 

2. Who May Make Motion, 157 

3. Ruling on Application Appealable, 157 

C. By Restraining Execution of Writ, 157 

1. The Rule, 157 

2. Appeal From Order, 157 

CROSS REFERENCE: 
Ejectment 

Vol. in 



140 



ASSISTANCE, WRITS OF 



I. ORIGIN AND DEFINITION. -Writs of assistance are of an- 
cient English origin and were usually classed under three heads: 1 (1.) 
"Writs which were issued out of the court of chancery, usually termed 
"writs of aid," addressed to the sheriff, commanding him to be in aid 
("quod fit in auxilium") of the King's tenants by knight service, or 
the King's collectors, debtors or accountants, to enforce payment of 
their own dues, in order to enable them to pay their dues to the 
King. 2 (2.) A writ issuing from the equity side of the Court of Ex- 
chequer or any court of chancery to the sheriff, to assist a receiver, se- 
questrator or other party to an action in equity, to get possession un- 
der a decree of court of lands withheld from him by another party to 
the suit. 3 (3.) A writ to seize uncustomed goods. 4 

II. NATURE OF WRIT AND WHEN ISSUED. — A. Summary 
Process. — The writ of assistance is summary in its character, 5 and 
will issue as part of the process in enforcing a judgment to put a 
party in possession in a particular case in which the question of title 
to the specific piece of real property is involved, 7 or in which the judg- 

1. New Writ Substituted. — In Eng- Thompson, 4 Johns. Ch. (N. Y.) 609; 



land under Rules of Court, Order 
XL VIII, -the writ of possession was sub- 
stituted. Hall V. Hall, 47 L. J. Ch. 630. 

2. Quincy (Mass.), App. I, 395. 

In Aid of Attachment. — It was not 
permissible to issue this writ to the 
sheriff in aid of an attachment, as it 
would be ordering him to assist himself 
in executing the process. Meagher v. 
Meagher, 1 Jones & L. (Ir.) 31; Ma- 
honey v. Aylward, 1 Hogan (Ir.) 474. 
It could be issued, however, to the pur- 
suivant. Mahoney v. Aylward, supra. 

3. Sills v. Goodyear, 88 Mo. App. 
316. See also Adamson v. Adamson, 12 
Ont. Pr. 21. 

In Ireland this form of writ did not 
issue to sequestrators. Brown v. Cuffe, 
1 Hogan 145. 

Origin of Writ. — This form of writ is 
said to have had its origin at least as 
far back as James I (2 Bouv. L. Diet. 
1248). Lord Hardwicke is quoted in 
Jones on Mortgages (2d ed.) §1663 to 
the same effect; but in Voigtlander v. 
Brotze, 59 Tex. 286, quoting from Jones 
on Mortgages, it is said it originated 
as early as the reign of Queen Eliza- 
beth and is also found in a book of or- 
ders in the time of Henry VIII, Ed- 
ward VI and Mary. See also Mont- 
gomery v. Tutt, 21 Cal. 190. 

Modern Authority — The right to is- 
sue this writ has been exercised by 
courts of chancery in the United 
States. 2 Daniell Ch. Pr. (6th ed.) 
1062, note 3; Murray v. De Rottenham, 
6 Johns. Ch. (N. Y.) 52; Kershaw v. 

vol. m 



Voigtlander v. Brotze, 59 Tex. 286. 

So far as appears there is no known 
instance of an issuance of this form 
of writ in Massachusetts. Quincy 
(Mass.), App. I, 396. 

4. Quincy (Mass.), App. I, 395. 
This writ was first introduced by 13 

and 14 Car. 2, c. 11. 

5. Ala. — Ex parte Forman, 130 Ala. 
278, 30 So. 480; Hooper v. Yonge, 69 
Ala. 484. Cal.— City of San Jose 
v. Fulton, 45 Cal. 316; Fox v. Stuben- 
rauch, 2 Cal. App. 88, 83 Pac. 82. 
Ind. — Emerick v. Miller (Ind. App.) 
62 N. E. 284. 

6. City of San Jose v. Fulton, 45 
Cal. 316; Fox v. Stubenrauch, 2 Cal. 
App. 88, 83 Pac. 82; Griswold v. Sim- 
mons, 50 Miss. 123. 

7. Cal.— People v. Doe, 31 Cal. 220. 
Md. — Garretson v. Cole, 1 Har. & J. 
370. N. J.— Strong v. Smith, 68 N. J. 
Eq. 686, 60 Atl. 66, 63 Atl. 493. 
N. Y.— Matter of New York Central & 
H. R. R. Co., 60 N. Y. 116. Pa.— 
Com. v. Dieffenbach, 3 Grant 368, 
citing Kelsey v. Church, C. PI. Rep. 
105. Tenn— Irvine's Heirs v. McRee, 
5 Humph. 554, 42 Am. Dec. 468. 

See also Adamson v. Adamson, 12 
Ont. Pr. 21. 

In a suit to remove a cloud on the 
title, no writ of assistance can be 
granted since the title is not adjudi- 
cated and no conveyance by the' de- 
fendant ordered. Clay v. Hammond 
199 111. 370, 65 N. E. 352, 93 Am. St! 
Rep. 146. 



ASSISTANCE, WRITS OF 



141 



ment or decree directs the sale of the defendant's interest in real 
property.* 

The purpose of the writ is to give effect to the rights awarded by 
the decree of a court of equity, 9 and it is issued on the principle that 
the court will carry its decrees into effect, when it can justly do so, 
without the co-operation of any other tribunal. 10 

B. Issuance Rests in Discretion. — The issuance of this writ rests 



8. Cal.— People v. Doe, 31 Cal. 220. 
Fla.— Keil v. West. 21 Fla. 508. Miss. 
Jones v. Hooper, 50 Miss. 510. N. Y. 
Matter of New York Cent. & H. R. 
R. Co., 60 N. Y. 116. N. C— Knight v. 
Houghtalling, 94 N. C. 408. 

The Michigan statute Act No. 229, 
Pub. Act 1897, does not prevent the is- 
suance of a writ of assistance where 
the tax sale at which the property was 
bid in was held before the act took 
effect, though the conveyance by the 
auditor general was made after the 
taking effect of the act. Pierpont v. 
Osmun, 118 Mich. 472, 76 N. W. 1044. 
9. U. S— Gormley v. Clark, 134 U. 
8. 338, 10 Sup. Ct. 554, 33 L. ed. 909; 
Pennsylvania v. Wheeling, etc., Bridge 
Co., 18 How 421, 15 L. ed. 435. Cal.— 
Kirsch v. Kirsch, 113 Cal. 56, 45 Pac. 
164; Fox v. Stubenrauch, 2 Cal. App. 
88, 83 Pac. 82. 111.— Clay v. Hammond, 
199 111. 370, 65 N. E. 352, 93 Am. St. 
Rep. 146. Ind. — Emerick v. Miller 
(Ind. App.), 62 N. E. 284, the object 
being to put in possession of the prem- 
ises the purchaser at a judicial sale. 
Mo.^Sills v. Goodyear, 88 Mo. App. 
316, its use in Missouri is almost un- 
known. Wis.— Diggle V. Boulden, 48 Wis. 
477, 4 N. W. 678, the power to allow a 
writ of assistance is inherent in courts 
of chancery. 

10. U. S.— Root v. Woolworth, 150 U. 
S. 401, 14 Sup. Ct. 136, 37 L. ed. 1123. 
Fla.— McLane v. Piaggio, 24 Fla. 71, 
3 So. 823. Miss. — Griswold v. Simmons, 
50 Miss. 123. N. J.— Strong v. Smith, 
68 N. J. Eq. 686, 60 Atl. 66, 63 Atl. 
493; Beatty v. De Forest, 27 N. J. Eq. 
482, affirming 25 N. J. Eq. 343. N. Y. 
Kershaw v. Thompson, 4 Johns. Ch. 
609. Va. — Newman v. Chapman, 2 
Rand. 93, 14 Am. Dec. 766; Com. v. 
Ragsdale, 2 Hen. & M. 8. W. Va — 
Trimble v. Patton, 5 W. Va. 432. 

A decree in equity requiring a de- 
fendant to execute a conveyance of 
land will be enforced by writ of as- 



sistance. Buffum's Case, 13 N. H. 14. 
Basis of Power To Issue. — "This writ 
is a process issued from a court of 
equity to enforce its decree, and its 
power to issue the writ results from 
the principle that jurisdiction to en- 
force a decree is coextensive with juris- 
diction to hear and determine the rights 
of the parties — that the court may do 
complete justice by declaring the right 
and enforcing a remedy for its enjoy- 
ment." Fox v. Stubenrauch, 2 Cal. 
App. 88, 83 Pac. 82. "It is a rule of 
that court to do complete justice when 
that is practicable, not merely by de- 
claring the right, but by affording a 
remedy for its enjoyment. It does not 
turn the party to another forum to 
enforce a right which it has itself es- 
tablished." Terrell v. Allison, 21 Wall. 
(U. S.> 289, 22 L. ed. 634, per Mr. 
Justice Field. 

In Texas, the district court in all 
cases within the scope of its jurisdiction 
has common law authority both in law 
and equity, and can, after a sale under 
a decree in a foreclosure suit, issue a 
writ of assistance. Yoigtlander v. 
Brotze, 59 Tex. 286. 

Where there is no express statutory 
authority for the issuance of the writ, 
it might be issued under the general 
statutorv grant of authority to issue 
writs. Prahl v. Rogers, 127 Wis. 353, 
106 N. W. 287. 

Does Not Violate Right of Trial by 
Jury. — The issuance of the writ of as- 
sistance is said to be the means pro- 
vided to enable the court to carry its 
decree into execution, and it would be 
but an idle ceremony to call a jury 
to determine the questions arising un- 
der the application. The failure to so 
require is not a violation of the con- 
stitutional right of trial by jury on 
the ground of depriving the owner of 
the right to try his title to his land 
before a iury. Ball v. Ridge Copper 
Co., 118 Mich. 7, 76 N. W. 130. 

vol. in 



142 



ASSISTANCE, WRITS OF 



in the discretion of the court, 11 which is never exercised in a doubtful 
case. 12 

Laches. — Whether the writ should be refused by reason of laches is 
a matter resting in the discretion of the court, 13 and mere delay in 
applying therefor is not necessarily sufficient to defeat the applica- 
tion. 14 

C. Cannot Be Used To Try Title.— The court will not, under 
color of its exercise, try or decide a question of title, either legal or 
equitable. 15 



11. Ind — Roach v. Clark, 150 Ind. 
93, 48 N. E. 796, 65 Am. St. Rep. 353; 
Emerick v. Miller (Ind. App.), 62 N. 
E. 284. Mich. — Baker v. Pierson, 5 
Mich. 456. N. J.— Board of Home Mis- 
sions v. Davis, 70 N. J. Eq. 577, 62 
Atl. 447, affirmed, 71 N. J. Eq. 788, 
65 Atl. 1117; Barton v. Beatty, 28 N. 
J. Eq. 412; Vanmeter v. Borden, 25 N. 
J. Eq 414; Schenck v. Conover, 13 N. 
J. Eq. 220, 78 Am. Dec. 95. Wash.— 
Hagerman v. Heltzel, 21 Wash. 444, 
58 Pac. 580. 

12. Ala.— Wiley v. Carlisle, 93 Ala. 
237, 9 So. 288. Ind.— Roach v. Clark, 
150 Ind. 93, 48 N. E. 796, 65 Am. St. 
Bep. 353; Gilliland v. Milligan, 144 Ind. 
154, 42 N. E. 1010; Emerick v. Miller 
(Ind. App.), 62 N. E. 284. N. J.— 
Board of Home Missions v. Davis, 70 
N. J. Eq. 577, 62 Atl. 447, affirmed, 71 
N. J. Eq. 788, 65 Atl. 1117; Barton v. 
Beatty, 28 N. J. Eq. 412; Vanmeter v. 
Borden, 25 N. J. Eq. 414; Blauvelt v. 
Smith, 22 N. J. Eq. 31 (the remedy 
being summary it will only be allowed 
in a clear case) ; Schenck v. Conover, 
13 N. J. Eq. 220, 78 Am. Dec. 95. N. 
C— Knight v. Houghtalling, 94 N. C. 
408. Wash. — Hagerman v. Heltzel, 21 
Wash. 444, 58 Pac. 580. Can.— Wooden 
v. Bushen, 1 Nova Scotia 429. 

13. Clark & Leonard Inv. Co. V. 
Lindgren, 76 Neb. 59, 107 N. W. 116. 

When Applicant Guilty of Laches. 
When three years have elapsed since 
the final disposition of a cause without 
an application having been made for 
the writ, a party will be remitted to his 
remedy at law. The Planters' Bank v. 
Fowlkes, 4 Sneed (Tenn.) 461. See 
also Ala. — Hooper v. Yonge, 69 Ala. 
484. Cal.— Langley v. Voll, 54 Cal. 
435. N. J.— New Jersey Bldg. L. & I. 
Co. v. Schatzkin, 72 N. J. Eq. 175, 64 
Atl. 1086. 

Vol in 



14. Prahl v. Rogers, 127 Wis. 353, 
106 N. W. 287. 

"The court is clothed with pretty 
broad discretionary power in respect 
thereto, but . . . one holding a 
sheriff's deed issued on a foreclosure 
sale, duly confirmed, is prima facie en- 
titled to his writ to be put in possession 
of the subject of the purchase. It 
cannot be withheld without some rea- 
sonable cause, mere delay not being 
sufficient." Prahl v. Rogers, 127 Wis. 
353, 106 N. W. 287. 

15. Ariz. — Godchaux v. Demarbaix, 
11 Ariz. 221, 11 Pae. 45; Asher v. Cox, 
2 Ariz. 71, 11 Pae. 44. Cal.-^-Hibernia 
Sav., etc., Soe. v. Robinson, 150 Cal. 
140, 88 Pac. 720; Kirsch v. Kirsch, 113 
Cal. 56, 45 Pac. 164; Landregan v. Pep- 
pin, 94 Cal. 465, 29 Pac. 771 (holding 
that the purchase by defendant of an 
outstanding title is no defense to an 
application for the writ); Henderson 
v. McTucker, 45 Cal. 647. Ind. — 
Roach v. Clark, 150 Ind. 93, 48 N. E. 
796, 65 Am. St. Rep. 353; Gilliland v. 
Milligan, 144 Ind. 154, 42 N. E. 1010; 
Emerick v. Miller (Ind. App.), 62 N. 
E. 284. Ky.— Kercheval v. Ambler, 4 
Dana 166. Mich.— Flint Land Co. v. 
Grand Rapids Terminal R. Co., 147 
Mich. 627, 111 N. W. 192, 101 Am. St. 
Rep. 645. Neb. — Merrill v. Wright, 65 
Neb. 794, 91 N. W. 697, 101 Am. St. 
Rep. 645. N. J. — Board of Home Mis- 
sions v. Davis, 70 N. J. Eq. 577, 62 
Atl. 447, affirmed, 71 N. J. Eq. 788, 
65 Atl. 1117; Barton v. Beatty, 28 N. J. 
Eq. 412; Vanmeter v. Borden, 25 N. J. 
Eq. 414; Thomas v. DeBaum, 14 N. J. 
Eq. 37. N. Y— Stillwell V. Hart, 40 
App. Div. 112, 57 N. Y. Supp. 639; 
Frelinghuysen v. Colden, 4 Paige 204. 
N. C— Exum v. Baker, 115 N. O. 242, 
20 S. E. 448, 44 Am. St. Rep. 449. S. 
C.—Ex parte Jenkins, 48 S. C. 325, 26 



ASSISTANCE, WRITS OF 



143 



III. WHO MAY HAVE WRIT -A. Purchasers Though Not 
Parties. — The writ will issue to a purchaser under a decree of sale, 
though he is not a party to the action, or does not appear in the rec- 
ord, 10 and to his assignee or grantee, 17 except in a case where injustice 



8. E. 686. Wis. — Stanley v. Sullivan, 
71 Wis. 585, 37 N. W. 801, 5 Am. at. 
Rep. 245; Gelpeke v. Milwaukee & H. 
R. Co., 11 Wis. 454. Can. — Wooden v. 
Bushen, 1 Nova Scotia 429. 

And see Ricketts v. Chicago Perma- 
nent B. & L. Assn., 67 111. App. 71. 

16. U. S— Terrell v. Allison, 21 Wall. 
289, 22 L. ed. 634. Ala.— Wiley v. 
Carlisle, 93 Ala. 237, 9 So. 288; John- 
ston v. Smith's Admr., 70 Ala. 108; 
Chapman v. Gibbs, 51 Ala. 502; Tram- 
mel v. Simmons, 8 Ala. 271; Creighton 
v. Paine, 2 Ala. 158. Cal. — Hibernia 
Sav. & Loan Soc. v. Lewis, 117 Cal. 
577, 47 Pac. 602, 49 Pac. 714; Mont- 
gomery V. Middlemiss, 21 Cal. 103, 81 
Am. Dec. 146; Montgomery v. Tutt, 
11 Cal. 190. Fla. — McLane v. Piaggio, 
24 Fla. 71, 3 So. 823. 111.— Lambert 
v. Livingston, 131 111. 161, 23 N. E. 
352; Jackson v. Warren, 32 111. 331. 
Kan. — Watkins V. Jerman, 36 Kan. 464, 
13 Pac. 798. Miss. — Gibson v. Mar- 
shall, 64 Miss. 72, 8 So. 205. Neb.— 
Clark & Leonard Inv. Co. v. Lindgren, 
76 Neb. 59, 107 N. W. 116. N. J.— 
Beatty v. DeForest, 27 N. J. Eq. 482; 
Schenck v. Conover, 13 N. J. Eq. 220, 
78 Am. Dec. 95. N. Y— Bell v. Bird- 
sail, 19 How. Pr. 491; Kershaw v. 
Thompson, 4 Johns. Ch. 609; Freling- 
huysen v. Colden, 4 Paige 204; Lynde v. 
O'Donnell, 12 Abb. Pr. 286.. N. C— 
Knight v. Houghtalling, 94 N. C. 408. 
Wis. — Diggle v. Boulden, 48 Wis. 477, 
4 N. W. 678. And see Gelpeke v. Mil- 
waukee & H. R. Co., 11 Wis. 454, as to 
who will be heard in opposition to the 
application, and whether it will be is- 
sued against one not a party to the 
action. 

In Gibson v. Marshall, 64 Miss. 72, 
8 So. 205, sustaining the text, the court 
cites Redus v. Hayden, 43 Miss, 614, 
and Jones v. Hooper, 50 Miss. 510, as 
supporting its view, and calls atten- 
tion to Wilson v. Polk, 13 Smed. & M. 
(Miss.) 131, 51 Am. Dec. 151, which 
holds that the writ will not issue to a 
purchaser as he was not a party to 
the record, as having been at one time 
the rule, and also to 2 Smith's Ch. Pr. 



214, that such was also the English 
practice. 

In a note to Wilson v. Polk (13 Smed. 
& M. 131), 51 Am. Dec. 151, 153, Wil- 
son v. Angus and Toynbee v. Duck- 
nell, both cited in Seton's Decrees, 
Judgments, and Orders, 1563, are re- 
ferred to as sustaining the right of a 
purchaser to the writ. 

Coitfra. — In Stephenson v. Giltenau, 
5 Ohio (N. P.) 419, 8 Ohio Dec. 513, it 
is held that the writ will not issue to 
one not a party to the cause. 

17. U. S.— Farmers' Loan & Tr. Co. 
V. Chicago & A. R. Co., 44 Fed. 653. 
Fla. — McLane v. Piaggio, 24 Fla. 71, 
3 So. 823; Keil v. West, 21 Fla. 508. 
Kan. — Motz v. Henry, 8 Kan. App. 416, 
54 Pac. 796. Mich. — Ketchum v. Rob- 
inson, 48 Mich. 618 ,12 N. W. 877. N. J. 
Elkings v. Murray, 29 N. J. Eq. 388. N. 
Y.— New York Life Ins. & T. Co v. 
Rand, 8 How. Pr. 352, affirming 8 How. 
Pr. 35. 

See also Root v. Woolworth, 150 U. 
S. 401, 14 Sup. Ct. 136, 37 L. ed. 1123. 
Application by Purchaser's Grantee. 
"The grantee of a purchaser at a ju- 
dicial sale is not necessarily incompe- 
tent to prosecute an application for a 
writ of assistance to put him into pos- 
session, and whether he shall be per- 
mitted so to do or not is a matter 
dependent upon circumstances and 
resting largely in the discretion of the 
court." Clark & Leonard Inv. Co. v. 
Lindgren, 76 Neb. 59, 107 N. W. 116. 
Compare, however, Langley v. Voll, 
54 Cal. 435 (in which the court loaves 
the question open for further consider- 
ation), and Gibson 0. Marshall, 64 Miss. 
72, 8 So. 205 (in which it is said that 
the question is "not free from diffi- 
culty," and that, so far as the court 
is advised, "the question has never 
been passed on by any court of last 
resort in America"). 

The cases of City of San Jose v. Ful- 
ton, 45 Cal. 316; People v. Grant. 45 
Cal. 97, and Stanley V. Sullivan. 71 Wis. 
585, .".7 X. W. 801,5 Am. St. Rep. 245, 
which appear to hold a contrary view, 
are not of general application, but are 

vol. m 



144 



ASSISTANCE, WRITS OF 



might be done thereby to the person in possession of the premises. 18 

B. Purchasers at Foreclosure Sales.— This writ is most fre- 
quently resorted to, and is an appropriate remedy, to place in posses- 
sion the purchaser at a foreclosure sale. 19 

C. Successful Party in Divorce Proceedings.— The writ may 

issue to place a party in possession of land under the provisions of a 

decree in a divorce proceeding vesting in such party the title to the 

property. 20 

C. 408. Tex. — Voigtlander v. Brotze, 
59 Tex. 286. Wash.— London Deben- 
ture Corp. v. Warren, 9 Wash. 312, 37 
Pac. 451. Wis.— Prahl v. Rogers, 127 
Wis. 353, 106 N. W. 287; Diggle v. 
Boulden, 48 Wis. 477, 4 N. W. 678; 
Loomis v. Wheeler, 18 Wis. 524. 

See also Herr v. Sullivan, 26 Colo. 
133, 56 Pac. 175. 

Contra. — In Armstrong v. Humph- 
reys, 5 S. C. 128, it is held, however, 
that this writ is not the proper remedy, 
but that an order of ouster should be 
obtained. 

In Indiana writs of assistance can- 
not be had in foreclosure suits. Em- 
erick V. Miller (Ind. App.), 62 N. E. 
284. 

Foreclosure of Mechanic's Lien. — ■ 
The writ has been issued to put in 
possession a purchaser at foreclosure 
of a mechanic's lien. O'Connor v. 
Schaeffel, 19 N. Y. Civ. Proc. 378, 25 
Abb. N. C. 344, 1] N. Y. Supp. 737, 33 
N. Y. St. 142. 

Independent Proceeding. — The writ 
may be granted in an independent pro- 
ceeding brought by the purchaser. 
Baker v. Pierson, 5 Mich. 456. 

When a decree of sale fails to or- 
der the surrender of possession and the 
person in possession refuses to give 
it up, the court will, on proper notice, 
make such order, and upon like ser- 
vice of a copy and demand of posses- 
sion will on motion without notice or- 
der the delivery of possession; then on 
affidavit of service of the order and a 
refusal to obey it a writ of assistance 
will issue without notice directing the 
sheriff tr, put the purchaser in posses- 
sion. Oglesbv v. Pierce, 68 111. 220. 

20. Kirsch v. Kirsch, 113 Cal. 56, 
45 Pac. 164, the statute permitting the 
disposition of community property in a 
divorce proceeding. See also White v. 
White. 130 Cal. 597, 62 Pac. 1062, 80 
Am. St. Eep. 150, reversed on other 



dependent on a construction of local 
statutes. 

Petitioner's title to land cannot be 
litigated on an application for a writ 
of assistance. White v. White? 130 
Cal. 597, 62 Pac. 1062, 80 Am. St. Rep. 
150, reversed on other grounds, 62 Pac. 
34. 

18. Clark & Leonard Inv. Co. v. 
Lingren, 76 Neb. 59, 107 N. W. 116; 
New York Life Ins. & T. Co. v. Rand, 
8 How. Pr. (N. Y.) 25, affirmed, 8 
How. Pr. 352; Van Hook v. Throck- 
morton, 8 Paige (N. Y.) 33. 

19. U. S.— Terrell v. Allison, 21 
Wall. 289, 22 L. ed. 634; Farmers' Loan 
& Tr* Co', v. Chicago & A. R. Co., 44 
Fed. 653. Ark.— Bright v. Pennywit, 
21 Ark. 130. Cal.— Hibernia Sav. & 
Loan Soc. v. Lewis, 117 Cal. 577, 47 
Pac. 602, 49 Pac 7T4; Montgomery v. 
Middlemiss, 21 Cal. 103, 81 Am. Dec. 
146; Montgomery v. Tutt, 11 Cal. 190; 
Fox v. Stubenrauch, 2 Cal. App. 88, 
83 Pac. 82. Idaho.— Harding v. Harker, 
17 Idaho 341, 105 Pac. 788, 134 Am. 
St Rep. 259. HI. — Clay v. Hammond, 
199 111. 370, 65 N. E. 352, 93 Am. St. 
Rep. 146; Harding v. Fuller, 141 111. 
308, 30 N. E. 1053; Jackson v. Warren, 
32 111. 331. Kan. — Watkins v. Jerman, 
36 Kan. 464, 13 Pac. 798. Mich.— 
Ketchum v. Robinson, 48 Mich. 618, 
12 N. W. 877; Ramsdell v. Maxwell, 32 
Mich. 285. Miss. — Jones v. Hooper, 50 
Miss. 510. Neb. — Clark & Leonard Inv. 
Co. v. Lingren, 76 Neb. 59, 107 N. W. 
116. N. J.— Strong v. Smith, 68 N. 
J. Eq. 686, 60 Atl. 66,-63 Atl. 493; 
Beatty v. DeForest, 27 N. J. Eq. 482; 
Schenck v. Con&ver. 13 N. J. Eq. 220, 
78 Am. Dec. 95. N. Y.— Bell v. Bird- 
sail, 19 How. Pr. 491; New York Life 
Tns. ft Tr. Co. v. Rand, 8 How. Pr. 
35, affirmed, 8 How. Pr. 352; Freling- 
hnysen v. Colden, 4 Paige 204; Ker 
*Vimv v. Thompson, 4 Johns. Ch. 609. 
N. C— Knight v. Houghtalling, 94 N. 

vol. ni 



ASSISTANCE, WRITS OF 



145 



D. Petitioner Under Burnt Records Acts. — As a result of the 
destruction of public records, and as emergency measures, there have 
been enacted what are termed "Burnt Records Acts." 21 And when 
under such act a petitioner's title is established and decreed, the court 
has ample power under its own decree to issue a writ of assistance to 
put him in possession. 22 

IV. AGAINST WHOM ISSUED. -The writ is issued and effective 
only as to persons against whom the decree is operative, and who are 
bound thereby. 23 One who goes into possession under a defendant is 
subject to dispossession by means of the writ, 24 even though he also 



grounds, 62 Pac. 34; Schultz v. Schultz, 
133 Wis. 125, 113 N. W. 445, 126 Am. St. 
Rep. 934. 

21. Rev. St., Illinois, Laws 1871-2, p. 
652, c. 116; Act 1048, title 153, Gen. 
Laws Cal. 

Burnt Records Act confers upon 
courts of equity an enlarged jurisdic- 
tion in the matter of establishing titles. 
Clay v. Hammond, 199 111. 370, 65 N. 
E. 352, 93 Am. St. Rep. 146; Harding 
v. Fuller, 141 111. 308, 30 N. E. 1053; 
Gage v. DuPuy, 127 111. 216, 19 N. E. 
878. 

22. Gormley v. Clark, 134 XJ. S. 
338, 10 Sup. Ct. 554, 33 L. ed. 909; 
Clay v. Hammond, 199 111. 370, 65 N. 
E. 352, 93 Am. St. Rep. 146; Harding v. 
Fuller, 141 111. 308, 30 N. E. 1053. 

23. U. S. — Howard v. Railway Co., 
101 U. S. 837, 25 L. ed. 1081; Terrell 
v. Allison, 21 Wall. 289, 22 L. ed. 634. 
Ariz. — Godchaux v. Demarbaix, 11 Ariz. 
221, 11 Pac. 45; Asher v. Cox, 2 Ariz. 
71, 11 Pac. 44. Cal. — Kirsch v. Kirsch, 
113 Cal. 56, 45 Pac. 164; Frisbie v. 
Fogarty, 34 Cal. 11 (whether named in 
the decree or not); Burton v., Lies, 21 
Cal. 87; Fox v. Stubenrauch, 2 Cal. App. 
88, 83 Pac. 82 (containing valuable dis 
cussion by Chipman, P. J). Idaho. — 
Harding v. Harker, 17 Tdaho 341, 105 
Pac. 788, 134 Am. St. Rep. 259. Mich. 
Howard v. Bond, 42 Mich. 131, 3 N. 
W. 289. Neb.— Merrill v. Wright, 65 
Neb. 794, 91 N. W. 697, 101 Am. St. 
Rep. 645. Wis. — Gelpeke v. Milwaukee 
& H. R. Co., 11 Wis. 454. See also 
State v. Giles, 10 Wis. 101. 

It issues merely "to give effect to 
rights awarded by the judgment. It 
should not and cannot operate to es- 
tablish in the one party, or to destroy 
in the other, any rights to the prop- 
erty independent of those determined 
by the judgment." Kirsch v. Kirsch, 
113 Cal. 56, 45 Pac. 164. 



It will not be operative and will 
not issue against one who was not a 
party to the suit or one who is privy 
to such a party. Miller v. Bate, 56 
Cal. 135. 

One holding, by paramount and inde- 
pendent title is not subject to the writ. 
Ritchie v. Johnson, 50 Ark. 551, 8 S. 
W. 942, 7 Am. St. Rep. 118. 

Unrecorded Conveyance. — Under a 
statute which provides that those only 
need be made defendants whose con- 
veyances or liens appear on the rec- 
ord, and that the judgment rendered 
and proceedings in the action are con- 
clusive against a party holding an un- 
recorded conveyance, a writ of assist- 
ance may be executed against one hold- 
ing under an unrecorded conveyance 
from one who was a party defendant, 
though he went into possession prior to 
the commencement of the foreclosure 
proceedings. Harding v. Harker, 17 
Idaho 341, 105 Pac. 788, 134 Am. St. 
Rep. 259. See also Hibernia Sav. & 
L. Soc. v. Cochran, 141 Cal. 653, 75 
Pac. 315. 

Former Owner of Fee Cannot Object. 
A former owner of the fee whose 
rights are concluded by the decree of 
foreclosure, cannot complain of the is- 
suance of the writ to oust the tenant, 
the tenant himself making no com- 
plaint. McCagg v. Touhy, 150 111. App. 
15. 

24. Ritchie V. Johnson, 50 Ark. 551, 
8 S. W. 942, 7 Am. St. Rep. 118; Strong 
v. Smith, 68 N. J. Eq. 686, 60 Atl. 66, 
63 Atl. 493. 

It is presumed that one who goes 
into possession pending the suit does 
so under the defendant. Ritchie v. 
Johnson, 50 Ark. 551, 8 S. W. 942, 7 
Am. St. Rep. 118. 

A purchaser from a party to the 
suit with knowledge of its pendency is 
bound by the decree and subject to the 

Vol. Ill 



146 



ASSISTANCE, WRITS OF 



sets up a claim under an independent title. 23 Thus it will issue against 
a party to the action or against his representative, 26 over whom the 
court has obtained jurisdiction, 27 or against one entering into posses- 
sion under a party to the action after suit commenced, 28 or after sale 
of the premises. 29 It will also issue against one holding possession as 
a trespasser or a mere intruder, 30 or against the privies to the original 

writ. Baker v. Pierson, 5 Mich. 456. 
This is not so, however, if such pur- 
chaser is without either "actual or con- 
structive notice. Harlan v. Kackerby, 
24 Cal. 561. 

Only against defendants and parties 
holding under them who are bound by 
the decree. Burton v. Lies, 21 Cal. 87. 

25. Ritchie v. Johnson, 50 Ark. 551, 
8 S. W. 942, 7 Am. St. Eep. 118. 

26. U. S.— Terrell v. Allison, 21 
Wall. 289, 22 L. ed. 634; Comer v. Fel- 
ton, 61 Fed. 731, 22 U. S. App. 313, 10 
C. C. A. 28. Ala.— Wiley v. Carlisle, 93 
Ala. 237, 9 So. 288; Johnston v. Smith's 
Admr., 70 Ala. 108; Hooper v. Yonge, 
69 Ala.- 484; Thompson v. Campbell, 
57 Ala. 183. Cal.— Hibernia Sav. & 
Loan Soc. v. Lewis, 117 Cal. 577, 47 
Pac. 602, 49 Pac. 714; Frisbie v. Fo- 
garty, 34 Cal. 11 (though not mentioned 
in the decree or the sheriff's deed); 
Montgomery v. Middlemiss, 21 Cal. 103, 
81 Am. Dec. 146; Montgomery v. Tutt, 
11 Cal. 190. 111.— BrusTi v. Fowler, 36 
111. 53, 85 Am. Dec. 382; Heffron v. Gage, 
44 111. App. 147. Kan. — Watkins v. 
Jerman, 36 Kan. 464, 13 Pac. 798. 
Miss. — Jones v. Hooper, 50 Miss. 510. 
N. J.— Strong v. Smith, 68 N. J. Eq. 
686, 60 Atl. 66, 63 Atl. 493; Beatty v. 
DeForest, 27 N. J. Eq. 482; Blauvelt v. 
Smith, 22 N. J. Eq. 31; Schenck v. 
Conover, 13 N. J. Eq. 220, 78 Am. Dec. 
95. N. Y.— Bell v. Birdsall, 19 How. 
Pr. 491; New York Life Ins. & Tr. Co. 
v. Band, 8 How. Pr. 35, affirmed, 8 How. 
Pr. 352; Boynton v. Jackson, 10 Paige 
307; Frelinghuysen v. Colden, 4 Paige 
204; Kershaw V. Thompson, 4 Johns. Ch. 
609; Meiggs v. Willis, 8 N. Y. Civ. Proc. 
125. N. C— Knight v. Houghtalling, 
94 N. C. 408. Wis.— Diggle v. Boulden, 
48 Wis. 477, 4 N. W. 678. 

The writ will issue after a sale in 
foreclosnre against a tenant in posses- 
sion who was a party defendant in 
the action, notwithstanding he claims 
under an unexpired lease of several 
years, executed by the mortgagors pre- 
vious to the date of the mortgage fore- 
closure. Lovett v. German Reformed 



Church, 9 How. Pr. (N. Y.) 220. 

27. Steinbach v. Leese, 27 Cal. 295. 

28. U. S— Terrell r. Allison, 21 Wall. 
289, 22 L. ed. 634; Comer v. Felton, 61 
Fed. 731, 22 U. S. App. 313, 10 C. C. A. 
28. Ala.— Wiley v. Carlisle, 93 Ala. 
237, 9 So. 288; Johnston v. Smith's 
Admr., 70 Ala. 108; Hooper v. Yonge, 
69 Ala. 484; Thompson v. Campbell, 
57 Ala. 183; Chapman v. Gibbs, 51 Ala. 
502. Fla. — Brown v. Marzyck, 19 Fla. 
840, where a party claimed under a tax 
title and it appeared that the claim 
was not in good faith. 111. — Kessinger 
v. Whittaker, 82 111. 22; Brush v. Fow- 
ler, 36 111. 53, 85 Am. Dec. 382; Jack- 
son v. Warren, 32 111. 331; He'ffron v. 
Gage, 44 111. App. 147. Kan.— Wat- 
kins V. Jerman, 36 Kan. 464, 13 Pac. 
798. Miss. — Jones v. Hooper, 50 
Miss. 510. N. J. — Strong v. Smith, 
68 N. J. Eq. 686, 60 Atl. 66. 63 Atl. 
493; Beatty v. DeForest, 27 N. J. Eq. 
482; Blauvelt v. Smith, 22 N. J. Eq. 31; 
Schenck v. Conover, 13 N. J. Eq. 220, 
78 Am. Dee. 95. N. Y.— Bell v. Bird- 
sail, 19 How. Pr. 491; New York Life 
Ins. & Tr. Co. v. Band, 8 How. Pr. 35, 
affirmed, 8 How. Pr. 352 ; Boynton v. 
Jackway, 10 Paige 307; Frelinghuysen 
v. Colden, 4 Paige 204; Kershaw V. 
Thompson, 4 Johns. Ch. 609; Meiggs v. 
Willis, 8 Civ. Proc. 125. N. C— Knight 
v. Houghtalling, 94 N. C. 408. S. C— 
Ex parte Jenkins, 48 S. C. 325, 26 S. E. 
686. Wis. — Diggle v. Boulden, 48 Wis. 
477, 4 N. W. 678. Eng — Bird V. Lit- 
tletales, 3 Swanst. 311, 36 Eng. Re- 
print 871. 

The text is sustained in Montgomery 
v. Tutt, 11 Cal. 190, but in later cases 
(Hibernia Sav. & Loan Soc. v. Lewis, 
117 Cal. 577, 47 Pac. 602, 49 Pac. 714; 
Montgomery v. Byers, 21 Cal. 107; 
Montgomery v. Middlemiss, 21 Cal. 103, 
81 Am. Dec. 146), it is stated that the 
writ will issue provided such party had 
notice. 

29. Jackson V. Warren, 32 111. 331. 

30. Wiley v. Carlisle, 93 Ala. 237, 
9 So. 288; Johnston v. Smith's Admr., 
70 Ala. 108; Hooper v. Yonge, 69 Ala. 



vol. ni 



ASSISTANCE, WRITS OF 



147 



parties to the suit, though such privies may not have been named as 
parties therein. 31 

When Ineffective. —The writ will not issue for the purpose of estab- 
lishing or destroying any right in the property, other than as deter- 
mined by the judgment. 32 It will not issue against one in possession 
at the time of the commencement of the action, who was not made a 
party, 33 or even against a party thereto where a new and independent 
right has been acquired, or where a prima facie showing of the acquire- 
ment of such a right is made. 3 * Nor will it be awarded against one 
who has entered upon land pendente lite, claiming an independent 
title, not derived from or in succession to any of the parties to the suit 
or their privies. 35 



484; Thompson v. Campbell, 57 Ala. 
183; Strong v. Smith, 68 N. J. Eq. 686, 
60 Atl. 66, 63 Atl 493. 

31. Hagerman V. Heltzel, 21 "Wash. 
444, 58 Pac. 580. 

32. Cal.— Kirsch v. Kirsch, 113 Cal. 
56, 45 Pac. 164. N. J. — Chadwiek v. 
Island Beach Co., 42 N. J. Eq. 602. 
Wis.— Stanley v. Sullivan, 71 Wis. 585, 
37 N. W. 801, 5 Am. St. Rep. 245. 

The writ will not be awarded in an 
action where the party in possession 
claims to hold under a paramount title, 
and the question of the title could not 
be litigated in the pending action. 
Hayward v. Kinney, 84 Mich. 591, 48 
N. W. 170. 

33. U. S.— Terrell v. Allison, 21 
Wall. 289, 22 L. ed. 634; Thompson t;. 
Smith, 1 Dill. 458, 23 Fed. Cas. No. 
33,977. Ala.— Wiley v. Carlisle, 93 Ala. 
237, 9 So. 288, where there was also 
claim of paramount title. Cal. — Bur- 
ton v. Lies, 21 Cal. 87, will not issue 
against a widow not a party, though 
the executors were parties. .111. — Gil- 
creest v. Magill, 37 111. 300; Root v. 
Paine, 22 HI. App. 349, affirmed, 121 
111. 77, 13 N. E. 541. Ky.— McChord v. 
McClintock, 5 Litt. 304. N. Y — Boyn- 
ton v. Jackway, 10 Paige Ch. 307. S. 
C.—Ex parte Jenkins, 48 S. C. 325, 26 
S. E. 686. 

But see Schultz v. Schultz, 133 Wis. 
125, 113 N. W. 445, 126 Am. St. Eep. 
934. 

Partnership Property. — When a mort- 
gage given by one partner on partner- 
ship property is foreclosed and a 
sheriff's deed to an undivided interest 
in the partnership property is given, 
the other partner not being made 
a party to the action, a writ of 



assistance will not be issued as 
against a receiver appointed by the 
court at the instance of the partner 
who was not made a party, in an ac- 
tion instituted by him to dissolve the 
partnership and for sale of the partner- 
ship property to pay debts. Auten- 
reith v. Hessenauer, 43 Cal. 356. 

34. Cal.— Kirsch v. Kirsch, 113 Cal. 
56, 45 Pac. 164; Langley v. Voll, 54 
Cal. 435; City of San Jose v. Fulton, 
45 Cal. 316. Mich. — Ramsdell v. Max- 
well, 32 Mich. 285. N. Y.— Toll v. 
Hiller, 11 Paige Ch. 228. 

Where defendant in a foreclosure suit 
after the entry of the decree purchases 
an outstanding title confessedly supe- 
rior to and independent of that of the 
purchaser at the foreclosure sale, the 
writ will not issue against him. Board 
of Home Missions v. Davis, 70 N. J. 
Eq. 577, 62 Atl. 447, distinguishing 
Chadwiek v. Island Beach Co., 43 N. 
J. Eq. 616, 12 Atl. 380 (holding that 
where defendant purchased and relied 
upon an outstanding title, the foreclos- 
ure proceeding impliedly adjudicates 
such claim and the writ will issue). 

Adverse Possession Subsequent to 
Deed. — "The court gives possession to 
the purchaser, as against all persons 
who are parties to the suit, or who came 
into possession under either of them 
while the suit is pending. It does not 
undertake to remove persons who go 
into possession after the. purchaser has 
received his deed and conveyed the 
premises to another." Bell v. Birdsall, 
19 How. Pr. (N. Y.) 491. 

35. 111. — Ricketts v. Chicago Perma- 
nent Bldg. & L. Assn., 67 111. App. 71. 
Neb.— Merrill v. Wright, 65 Neb. 794, 
91 N. W. 697, 101 Am. St. Rep. 645. N. 

vol. m 



148 



ASSISTANCE, WRITS OF 



V. PROCEEDINGS TO OBTAIN. -A. Facts Necessary To Se- 
cure Writ. — When the writ is applied for it should be made to appear 
at least that the decree was served and that possession was demanded 
and refused. 36 And while it may be customary, and the better practice, 
first to issue an order, requiring the surrender of possession, when it 



Y.— Toll v. Hiller, 11 Paige .228; 
Van Hook v. Throckmorton, 8 Paige 
33. N. C— Exum V. Baker/ 115 N. 
C. 242, 20 S. E. 448," 44 Am. St. Eep. 
449. Wash. — Hagerman v. Heltzel, 21 
Wash. 444, 58 Pac. 580. 

When Possession Adverse. — Where a 
party comes into possession of the prop- 
erty pendente lite, not under a party 
thereto, but under one who was neither 
a party or privy, but claiming an in- 
dependent title to the premises in- 
volved, the writ will not issue. 111. — 
Eicketts v. Chicago Permanent Bldg. 
& L. Assn., 67 111. App. 71. Neb.— 
Merrill v. Wright, 65 Neb. 794, 91 N. 
W. 697, 101 Am. St. Eep. 645. N. Y.— 
Van Hook v. Throckmorton, 8 Paige 
Ch. 33.' 

36. Ala. — Hooper v. Yonge, 69 Ala. 
484. Cal. — Montgomery v. Middlemiss, 
21 Cal. 103. 111.— O 'Brian V. Fry, 82 
111., 87. Mich.— Tucker v. Stone, 99 
Mich. 419, 58 N. W. 319; Howard v. 
Bond, 42 Mich. 131, 3 N. W. 289. Miss. 
Jones v. Hooper, 50 Miss. 510. N. 
J. — Board of Home Missions v. Davis, 
70 N. J. Eq. 577, 62 Atl. 447; Strong v. 
Smith, 68 N. J. Eq. 686, 60 Atl. 66, 63 
Atl. 493. N. Y— New York Life Ins. 
& T. Co. v. Cutler, 9 How. Pr. 407; 
New York Life Ins. & T. Co. v. Eand, 
8 How. Pr. 35, affirmed, 8 How. Pr. 
352. Wis.— Landon v. Burke, 36 Wis. 
378, holding that the application, where 
the proceeding is in strict foreclosure, 
should show that the amount adjudged 
was demanded and refused. Eng. — 
Stribley v. Hawkie, 3 Atk. 275, 26 
Eng. Eeprint 961 ( there must be an in- 
junction to defendant to deliver pos- 
session, the decree being for possession 
and then a writ of assistance), citing 
Pen v. Lord Baltimore, 1 Ves. Sr. 444, 
454, 27 Eng. Eeprint 1-132, 1139; Eob- 
erdean v. Eous, 1 Atk. 543, 26 Eng. 
Eeprint 342. 

Necessity of Showing Valid Judg- 
ment. — To entitle a party to a writ of 
assistance, he should show a valid judg- 
ment. Vermont L. & T. Co. v. Mc- 
Gregor, 5 Idaho 510, 51 Pac. 104. 

Forms of Petition. — The petition 

vol. ni 



should set forth the making and entry of 
decree of sale, the sale of the prem- 
ises, the execution of the deed by the 
commissioner, and its record; also, that 
the defendants were in possession. The 
petition in this case recited: 

"That on the 14th day of June, 1893, 
your petitioner peaceably applied to the 
said defendants, and in a friendly man- 
ner presented and exhibited to them the 
said deed of the said circuit court com- 
missioner, made to your petitioner as 
aforesaid, of the said land, and also 
a copy of the order confirming such sale, 
duly certified by the register of this 
court, and requested and demanded of 
the said defendants, Chester A. Stone 
and Harriet Stone, that they should 
forthwith surrender and deliver up 
possession thereof to your petitioner, as 
in and by said decree provided, and as 
in equity they ought to have done; but 
so to do the said defendants absolutely 
refused, and still do refuse, and retain 
possession of said last-mentioned land, 
against the rights of your petitioner." 
Tucker v. Stone, 99 Mich. 419, 422, 
58 N. W. 319. 

In Ferguson v. Blakeney, 6 Ark. 296, 
the court after questioning whether 
this should be an ex parte proceeding, 
says: "We think that the correct prac- 
tice, in such cases, is to require the 
purchaser to state in his petition, that 
it is either the defendant or his lessee, 
who is in possession, and also to set 
forth such facts as are sufficient in 
law to divest either, as the case may 
be, of whatever right, title and interest 
he may have had in the premises and 
to vest the same in himself, and then to 
conclude with a prayer for a rule upon 
the party in possession to appear at a 
time and place therein designated to 
show cause, if any he can, why the 
order should not be made against him." 

In Illinois the practice, "conforming 
to the general chancery practice, is, 
where the decree orders the defendant, 
on the execution of the deed by the 
master in chancery, to surrender the 
possession to the purchaser, to serve a 
copy of the decree on the defendant in 



ASSISTANCE, WRITS OF 



149 



is made to appear that the making of such preliminary order would 
be unavailing, the writ may issue in the first instance. 37 

B. Necessity for Notice. — In some jurisdictions the writ is issued 
as part of the process of the court upon an ex parte application with- 
out notice, upon proof of facts showing the necessity therefor, 38 but 



possession, or, if others are in under 
him as purchasers, tenants, or other- 
wise, then upon them, and on possession 
being refused, the court will, on filing 
an affidavit of the facts, award a writ 
of possession. But where the original 
decree ordering the sale fails to order 
possession to be thus surrendered, and 
the person in possession refuses to sur- 
render it, the court will, on proper 
notice and motion, make such an 
order, and upon like service of a 
copy, and demand of possession, will, 
on motion, and without notice, or- 
der an injunction against the party 
to deliver possession, and then, 
on affidavit of the service of the injunc- 
tion, and a refusal to deliver posses- 
sion, a writ, of assistance directed to 
the sheriff to put the purchaser into 
possession issues, of course, on motion 
and without notice." Oglesby v. 
Pearce, 68 HI. 220, citing Holt v. Rees, 
46 111. 181; Lloyd v. Karnes, 45 111. 62; 
Bennett v. Matson, 41 111. 332; Jack- 
son v. Warren, 32 111. 331; Bruce v. 
Roney, 18 111. 67; Aldrich v. Sharp, 4 
111. 261; Hill's Ch. Pr. 509. 

Failure to allege that the person 
against whom the proceeding is brought 
is in possession of the land is a fatal 
defect. Oglesby v. Pearce, 68 111. 220. 

"The petition is in the usual form, 
setting forth the issuing of the execu- 
tion; a description of the lands, the 
possession of the defendant, who was a 
party to the foreclosure proceedings; 
the exhibition of the sheriff's deed to 
her, with a demand for possession, and 
her refusal." Board of Home Mis- 
sions v. Davis, 70 N. J. Eq. 577, 62 Atl. 
447. 

Regarding the form of petition, it 
is said in Jones v. Hooper, 50 Miss. 510: 
"It seems to be enough to file a peti- 
tion setting forth the sale under the 
decree, the purchase, and the deed by 
the commissioner, confirmation of sale, 
payment of the money if made for cash, 
that the deed was exhibited to the de- 
fendant and possession demanded and 
praying that the writ may issue." 



In Devaucene v. Devaucene, 1 Edw. 
Ch. (N. Y.) 272, under a decree for re- 
conveyance of certain real estate the 
writ was issued upon the following: 
"Notice of the motion and affidavit of 
personal service of a copy of the same 
and of the other papers; a certified 
copy of the decree; certificate of the 
enrolment of the decree; deed of re- 
conveyance, approved by a master; 
affidavit showing a demand of posses- 
sion and execution of the deed of re- 
conveyance and refusal to do either." 

37. Kemp v. Lyon, 76 Ala. 212. 

38. Ala. — Hooper v. Yonge, 69 Ala. 
484 (service of the decree and refusal to 
obey); Creighton v. Paine, 2 Ala. 158. 
And see Trammel v. Simmons, 8 Ala. 
271. Cal.— Sickler v. Look, 93 Cal. 600, 
29 Pac. 220 (but it is expedient to in- 
clude provision therefor in the decree); 
Montgomery v. Middlemiss, 21 Cal. 103, 
81 Am. Dec. 146 (upon showing that 
the deed was presented, and possession 
was demanded and refused); Mont- 
gomery v. Tutt, 11 Cal. 190. But see 
Miller v. Bate, 56 Cal. 135, that on an 
ex parte application against a defend- 
ant the order is inoperative against any 
other person. Fla. — McLane v. Piaggio, 
24 Fla. 71, 3 So. 823. 111.— O 'Brian v. 
Fry, 82 111. 87 (when an order for pos- 
session is contained in the original de- 
cree); Oglesby v. Pearce, 68 111. 220; 
Bruce v. Roney, 18 111. 67; Smith v. 
Brittenham, 3 111. App. 6i'. Mich.— 
Tucker v. Stone, 99 Mich. 419, 58 N. W. 
319 (the writ will be granted on proof 
of service of the order of confirmation. 
And see form following); Benhard V. 
Darrow, Walk. 519 (when party in pos- 
session was a party to the action). 
Miss. — Harnov v. Morton, "39 Miss. 508, 
as between the parties and those claim- 
ing under them. See, however, Jones 
v. Hooper, 50 Miss. 510, that notice of 
application should be given. N. Y. — 
New York Life Ins. & T. Co. v. Cutler, 
9 How. Pr. 407; New York Life Tns. & 
T. Co. v. Rand, 8 How. Pr. 35. ,/' 

8 How. Pr. 352; Kershaw v. Thompson, 

vol. m 



150 



ASSISTANCE, WRITS OF 



the better practice would seem to be to make the application on no- 
tice. 39 



4 Johns. Ch. 609; Valentine v. Teller, 
1 Hopkins Ch. 422. 

Necessity for Notice. — The writ is 
issued sometimes upon notice and some- 
times without notice. * Emerick v. Mil- 
ler (Ind. App.), 62 N. E. 284. And see 
the following cases: Bruce v. Eoney, 18 
111. 67; Cook v. Moulton, 66 111. App. 
480; Smith v. Brittenham, 3 111. App. 
62 (holding that application be made 
to the court presenting the facts so 
that the court may judge of the pro- 
priety of awarding the writ); Landon 
v. Burke, 36 Wis. 378 (that "an appli- 
cation should be made to the court — 
founded on proof of a demand and re- 
fusal on the part of the defendants to 
pay the amount adjudged to be paid, — 
for the issuing of a process or execu- 
tion in the nature of a writ of assist- 
ance, to place plaintiff in possession of 
the premises;" there being no state- 
ment as to whether or not this applica- 
tion is required to be on notice). 

In the case of Prahl v. Rogers, 127 
Wis. 353, 106 N. W. 287, the court says: 
"The manner of obtaining the writ, it 
will be seen, is left entirely to the wis- 
dom of the court, in the absence of any 
rule on the subject prescribed by this 
court, and there is none. The trial 
court may require notice to the occu- 
pant of the property of the application 
for the writ or not as in his judgment 
may seem best in the particular case. 
What would be proper and reasonably 
necessary in one case might not be in 
another." 

In MeLane v. Piaggio, 24 Fla. 71, 99, 
3 So. 823, the court says: "The direc- 
tion in the decree of foreclosure, that 
the master put the purchaser in pos- 
session, we regard as tantamount to 
the usual provision that the purchaser 
be let into possession, and this pro- 
vision is held to render any further 
order for the writ unnecessary." 
Citing Cal. — Montgomery v. Middlemiss, 
21 Cal. 103. 111.— Kessmger v. Whit- 
taker, 82 111. 22; Aldrich v. Sharp, 4 111. 
261. N. Y. — Kershaw v. Thompson, 4 
Johns. Ch. 609. 

In Alabama if the Chancellor, on ex- 
amination, "is satisfied that the pos- 
session is withheld by some one who is 
concluded by the decree, that is, by the 

vol ni 



defendant himself, or some one who 
has come in under him pendente lite, 
he will make a decretal order, that the 
possession be delivered to the purchaser, 
unless the master had been previously, 
directed by the decree of foreclosure, 
to put the purchaser into possession. 
If this order be not complied with, on 
application, an injunction will issue 
commanding those in possession forth- 
with to deliver it up; and on affidavit 
of service of the injunction, and refusal, 
a writ of assistance to the Sheriff to 
put the party in possession, issues of 
course, on motion, without notice." 
Creighton v. Paine, 2 Ala. 158. 

The course of procedure according to 
the English practice was laid down in 
Dove v. Dove, 1 Bro. Ch. 375, 28 Eng. 
Reprint 1187, 1 Dick. 617, 21 Eng. Re- 
print 411, as follows: "A writ of as- 
sistance must be applied for, because 
the Court is to be satisfied that the 
steps requisite to be pursued have been 
followed: they are these, first, the ser- 
vice of a writ of execution, of an order 
to deliver a demand, and the issuing 
an attachment for disobeying it. The 
next is an injunction to enjoin the de- 
fendant to deliver possession, (which 
affects the tenant, and which the order 
for the defendant to deliver possession, 
doth not, as is said in Venables v. 
Foyles, 12 Car. 2, Lib. fol. 260.) The 
order for the injunction is of course, 
upon affidavit of service of a writ of 
execution of the order for the defend- 
ant to deliver possession, demanding 
possession, refusal, and the issuing the 
attachment. Upon proof of service of 
the injunction, and its not having been 
complied with, upon motion without 
notice, and reading an affidavit of the 
facts, a writ of assistance will be or- 
dered." 

39. Ala.— Wiley v. Carlisle, 93 Ala. 
237, 9 So. 288; Creighton v. Paine, 2 Ala. 
158. Ark. — Ferguson v. Blakeney, 6 
Ark. 296, the right to notice is waived 
by appearance and disclaimer. Cal. — 
Hibernia Sav. & L. Soc. v. Lewis, 117 
Cal. 577, 47 Pac. 602, 49 Pac. 714; Mil- 
ler v. Bate, 56 Cal. 135; Newmark v. 
Chapman, 53 Cal. 557. Fla. — MeLane 
v. Piaggio, 24 Fla. 71, 3 So. 823; Keil 
v. West, 21 Fla. 508. 111.— O 'Brian v. 



ASSISTANCE, WRITS OF 



151 



C. Hearing of Application. — 1. What Considered. — While on 
the hearing oi* the application for a writ of assistance there can be no re- 
trial on the merits, 40 it is competent for a defendant to try the ques- 
tion whether the court granting the decree was without jurisdiction. 41 

2. Standing of Third Parties.— One who is a stranger to the rec- 



Fry, 82 HI. 87 (when the original de- 
cree contains no order for possession, 
application should be on notice); Me- 
Cagg v. Touhy, 150 111. App. 15. Md.— 
Waters v. Duvall, 6 Gill & J. 70. Mich. 
Benhard V. Darrovv, Walk. 519, when 
party in possession was not a party to 
the action. Miss.— Jones v. Hooper, 50 
Miss. 510. But see Harney v. Morton, 
39 Miss. 508, holding that as between 
the parties and those claiming under 
them notice is unnecessary. N. Y. — 
Devaucene v. Devaucene, 1 Edw. Ch. 
272. N. 0.— Coor v. Smith, 107 N. C. 
430, 11 S. E. 1089 (but while the action 
is peuding no actual notice is required, 
all parties being presumed to have no- 
tice of all motions, orders and decrees 
made in the cause); Knight 17. Hough- 
tailing, 94 N. C. 408. Wis.— Schultz v. 
Schultz, 133 Wis. 125, 113 N. W. 445, 
126 Am. St. Rep. 934. 

When Petition Unnecessary on Appli- 
cation. — When a party "had notice 
from the beginning as to what was 
sought and was fully as informed of 
the claim of right made against her, as 
she possibly could have been by a peti- 
tion," and had the opportunity and did 
contest the issuing of various orders, as 
if a petition had been filed, the writ 
is not improperly issued because of fail- 
ure to file a petition therefor. Dorr v. 
Root, 104 111. App. 417. 

While the court in Schenck v. Con- 
over, 13 N. J. Eq. 220, 226, says: "The 
proper mode of proceeding where the 
delivery of possession is not included 
in the decree, as settled in Kershaw v. 
Thompson, (4 Johns. Ch. [N. Y.] 609), 
and as hitherto adopted in this court, 
is a demand of possession by the pur- 
chaser of the tenant in possession, ac- 
companied by an exhibit of the deed 
from the sheriff or master, order to de- 
liver possession, injunction, and writ of 
assistance. The preliminary orders are 
made \ipon notice and affidavits; the 
last writ issues of course and without 
notice." In a note to that case it ap- 
pears that "in a more recent case it 
has been held that the injunction 



should be dispensed with, and that the 
writ of assistance should issue in the 
first instance, upon proof of the ser- 
vice of the order to deliver possession, 
of demand of possession, and refusal 
to comply therewith. Notice of the 
application is necessary." 

Notice to the occupant of the land 
may or may not be required by the 
court preliminary to the issuance of a 
writ of assistance in aid of a purchaser 
at foreclosure sale. Prahl v. Rogers, 
1-7 Wis. 353, 106 N. W. 2s7. 

40. Fla.-Keil v. West, 21 Fla. 508. 
Mich. — Peters v. Youngs, 122 Mich. 484, 
81 N. W. 263; Ball v. Ridge Copper Co., 
118 Mich. 7, 76 N. W. 130. Pa.— Pitts- 
burg, J. E. & E. R. Co. v. Altoona & 
B. C. R. Co., 203 Pa. 108, 52 Atl. 13, 
declaring that the only question on the 
hearing for the writ is whether the de- 
cree had been complied with. 

41. White v. White, 130 Carl. 597, 62 
Pac. 1062; 80 Am. St. Rep. 150, reversing 
62 Pac. 34; Peters v. Youngs, 122 Mich. 
484, 81 N. W. 263; Ball v. Ridge Cop- 
per Co., 118 Mich. 7, 76 N. W. 130. 

In Michigan under §72 of the State 
Tax Law provision is made for writ of 
assistance to put in possession a pur- 
chaser of tax title. Upon the filing of 
the petition the inquiries are "(1) 
whether the court had jurisdiction to 
render the decree; (2) whether all the 
steps required by the statute have been 
taken in making the sale, filing the re- 
port of sale, etc.; (3) whether the time 
for redemption has expired." Ball v. 
Ridge Copper Co., 118 Mich. 7, 76 N. 
W. 130. 

Cannot Attack Judgment on the 
Hearing. — Upon proceedings to procure 
the writ the person in possession can- 
not collaterally attack the judgment. 
Hibernia Sav. & Loan Soc. v. Lewis, 117 
Cal. 577, 47 Pac. 602, 49 Pac. 714; 
Newark V. Chapman, 53 Cal. 557. 

An objection that the papers were 
improperly entitled will not be con- 
sidered, it being too technical. Howe 
v. Lemon, 47 Mich. 544, 11 N. W. 379. 

Vol. m 



15 2 ASSISTANCE, WRITS OF 

ord, and who is neither in possession nor entitled to possession, will 
not be heard on the application. 42 

3 Form of Objections. -When the application is on notice, objec- 
tions to its issuance must be more than mere verbal objections or argu- 
ment opposing the enforcement of the decree. 43 Objections on the part 
of one without right which would postpone the issuance ot the writ 
will not be entertained. 44 ■ 

4 Pendency of Another Proceeding. -That there is also pending 
another proceeding to obtain possession begun by the applicant, is no 
reason for refusing the writ. 45 

VI HOW ISSUED. — A. In General. — As a rule the writ is issued 
by the court, 40 but there is authority for its issuance by a judge, 47 or 



42. Gibson v. Marshall, 64 Miss. 72, 8 
So. 205, where a counter petition was dis- 
missed, it being filed by one having a 
debt against K and who had sued on it 
and garnished against the defendant 
who was indebted to K, although he 
had given a mortgage to secure K. 

43. Aldrich v. Wayne Circuit Judge, 
111 Mich. 525, 69 N. W. 1108. 

A mere technical objection will not 
be entertained. Howe v. Lemon, 47 
Mich. 544, 11 N. W. 379. 

The filing of an answer on the appli- 
cation for the writ is a waiver of any 
informality in the proceedings to ob- 
tain it. Keil v. West, 21 Fla. 508. 

44. White v. White, 130 Cal. 59, 62 
Pac. 1062, 80 Am. St. Kep. 150, reversed 
on other grounds, 62 Pac. 34. 

45. Keil v. West, 21 Fla. 508 (an ac- 
tion in ejectment where no election of 
remedies was requested); Kessinger v. 
Whittaker, 82 111. 22 (action for forcible 
entry and detainer). 

46t u. S — Gormley v. Clark, 134 U. 
S. 338. 10 Sup. Ct. 554, 33 L. ed. 909. 
Ala.— Wiley v. Carlisle, 93 Ala. 237,^9 
So. 288; Johnston v. Smith's Admr., 70 
Ala. 108; Hooper v. Yonge, 69 Ala. 484; 
Trammel v. Simmons, 8 Ala. 271; 
Creighton v. Paine, 2 Ala. 158. Ark.— 
Jeffers v. Davis, 85 Ark. 242, 107 S. W. 
1175. Cal. — Montgomery v. Tutt, 11 
Cal. 190. Fla.— Gorton v. Paine, 18 Fla. 
117. 111. — Bruce v. Eoney, 18 111. 67; 
Smith v. Brittenham, 3 111. App. 62. 
N. Y.— Kershaw v. Thompson, 4 Johns. 
Ch. 609; Valentine v. Teller, 1 Hopk. 
Ch. 422; Ludlow v. Lansing, 1 Hopk, 
Ch. 231. N. C— Knight t\ Houghtalling 
94 N. C. 408. Va. — Newman v. Ohap 
man, 2 Band. 93, 14 Am. Dec. 766 

vol ni 



W is._p ra hl v. Eogers, 127 Wis. 353, 106 
N. W. 287. 

The city court of New York, though 
not a court of equity, had under the 
statute jurisdiction over foreclosures of 
mechanics' liens, and under a statute 
which provided that the manner and 
form of conducting a mechanic's lien 
proceeding should be the same as the 
foreclosure of a mortgage, it was held 
that with fhe jurisdiction given to 
foreclose went everything necessary to 
a complete execution of the jurisdic- 
tion, and that the court in such a pro- 
ceeding had authority to issue a writ 
of assistance. O'Connor v. Schaeffel, 
19 Civ. Proc. 378, 25 Abb. N. C. 344, 11 
N. Y. Supp. 737, 33 N. Y. St. 143. And 
see Marcus v. Aufses, 94 N. Y. Supp. 
397. 

47. Chapman v. Thornburg, 23 Cal. 
48, since the passage of c. 512, Laws of 
1861. See also Kessinger v. Whittaker, 
82 111. 22; Murchison v. Miller, 64 S. C. 
425, 42 S. E. 177, either in open court 
or at chambers. See, however, Hart- 
suff v. Huss, 2 Neb. "(Unof.) 145, 95 N. 
W. 1070, that a judge at chambers has 
no authority to issue the writ. 

In McLane v. Piaggio, 24 Fla. 71, 92, 
3 So. 823, "a writ of assistance di- 
rected to the Sheriff of Washington 
County, was issued in this cause by the 
Judge of the Second Circuit, sitting for 
Leon county. This writ recites the fact 
of the rendition of the decree of fore- 
closure and that a sale was made to 
Piaggio, trustee, and the order of con- 
firmation, and that 'it now appears that 
the defendants refuse to surrender pos- 
session of the mortgaged property to 
George W. Wright, to whom said 



ASSISTANCE, WRITS OF 



153 



other court official, as, for instance, the prothonotary or clerk. 43 
Only the court whose mandate is to be enforced can issue the writ. 49 



Piaggio has sold the same, and to whom 
he is desirous that the same shall be 
surrendered,' and commands the Sheriff 
to remove defendants from possession 
and put Wright in possession of all said 
mortgaged property, to wit: a certain 
parcel of land in Washington county, 
known as the McLane mill tract, con- 
sisting of ten acres of land, more or 
less, together with all of the buildings, 
improvements, structures of every kind, 
saw mill boilers, machinery, fixtures, 
tools and implements on said premises." 
The writ was sustained both as to form 
and description of property. 

48. Miss. — Griswold v. Simmons, 50 
Miss. 123. Pa. — Com. v. Dieffenbach, 3 
Grant's Cas. 368, holding that the writ 
may be issued by the prothonotary, and 
citing Rule 9 of the equity practice of 
the United States courts, providing that 
the writ of assistance shall be issued 
by the clerk of the court. Wis. — 
Loomis v. Wheeler, 21 Wis. 271; Attor- 
ney-General v. Lum, 2 Wis. 507 (hold- 
ing that the writ is to be issued by the 
clerk). See, however, Goit v. Dicker- 
man, 20 Wis. 630, in which the court 
says: "As against parties to the suit, 
it may well be the duty of the clerk to 
issue the writ of assistance, when the 
requisite affidavit is made, without a 
special order of the court. But surely 
the rule does not authorize the clerk to 
issue the writ, without such an order, 
against one not a party to the suit nor 
bound by the judgment." 

The use of the rule under which these 
decisions were made has, however, been 
discontinued, and Loomis v. Wheeler, 
supra, should be entirely disregarded, 
Prahl v. Rogers, 127 Wis. 353, 106 N. 
W. 287. 

Issuance by clerk not without an 
order of court. Prahl v. Rogers, 127 
Wis. 353, 106 N. W. 287. 

49. People v. Doe, 31 Cal. 220; Har- 
ney v. Morton, 39 Miss. 508. 

When a decree involving the title to 
real estate is reversed on appeal, all 
supplementary matters are to be car- 
ried out by the trial court and a writ 
of assistance should be applied for 
there, and not in the appellate court. 
Foster v. Beidler, 81 Ark. 274, 98 S. W. 
968. 



After Decree in Appellate Court. — 
When a decree requiring the delivery 
of possession of certain property is 
made in the supreme court, and the 
cause is remitted to the court below 
for the purpose of an accounting, the 
application for the writ of assistance 
must be made in the court below. 
Ryerson v. Eldred, 18 Mich. 195. 

Form of Order for Writ.— In Mc- 
Cagg v. Touhy, 150 111. App. 15, the 
order "after reciting a petition of 
Jane Creigh Wells for a writ of assist- 
ance in the cause, and that notice had 
been given to Catherin C. Touhy, S. 
Rogers Touhy, and all parties in inter- 
est, found from 'affidavits, evidence 
and admissions in open court, that Jane 
Creigh Wells became a bona fide pur- 
chaser of block two in Rogers Park 
(the premises involved in this suit), 
and that her title was derived under 
the decree of foreclosure of March 18, 
1902, and the master's deed pursuant 
thereto; that at the time she became 
such bona fide purchaser for value no 
appeal or writ of error had been prose- 
cuted or was pending from said decree, 
and that by an order of the court en- 
tered July 18, 1905, she had been put 
into possession of all of block 2 except 
a piece twenty-two by thirty-one feet 
on the northwest corner of Clark street 
and Touhy avenue; that she was not 
in possession of this piece because the 
right of possession thereof was claimed 
by one S. Rogers Touhy under a lease 
from the defendant, Catherine C. 
Touhy, which expired September 10, 
1905; that Jane Creigh Wells had, after 
proper service of the decree and the 
master's deed on Catherine C. Touhy, 
made demand since September 10, 1905, 
on S. Rogers Touhy for the possession 
of this excepted piece of block 2, and 
S. Rogers Touhy had refused to give 
up such possession.' It then ordered 
that a writ of assistance as prayed for 
in said petition against" said Catherine 
C. Touhy, S. Rogers Touhy, and all per- 
sons claiming by, through or under 
them, or either of them, issue forth- 
with, to eject and move them from this 
excepted portion of block 2 and put 
Jane Creigh Wells into possession 
thereof." 



vol rn 



'54 



ASSISTANCE, WRITS OF 



B. Irregularity in Form of. -Amendable irregularities in the 
vrit are waived by appearance and motion to set it aside on the 
merits. 50 

C Issuance of Alias Writ.- When the record fails to disclose 
fact's from which it can be determined whether or not the writ has 
been fully executed, and it appears to the court by affidavit, not con- 
tradictory to the return but' explanatory thereof, that the writ has not 
been fully executed, the court will on application of the party for 
whcse benefit the original writ was issued, direct the issuance of an 
alias writ. 51 

VII. HOW EXECUTED.- It is the duty of the officer executing 
the writ to place the party in whose favor the same is issued in posses- 
sion of every part of the property described therein, and to eject 
therefrom all persons whom he finds in possession or occupancy of the 
premises, whether named in the writ or not, who claim under or 
through the person against whom the writ is directed. 52 If he refuses 



In Tevis v. Hicks, 38 Cal. 234, the 
writ was issued by the Sixth District 
Court, directed to the sheriff of Sacra- 
mento county, commanding him to 
" 'go to and enter upon the said tract 
of land hereinafter described, and that 
you eject and remove therefrom the 
said' "William Hicks, and that you place 
the said John F. McCauley or his as- 
signs, without delay, in the full, peace- 
able and quiet possession of the fol- 
lowing described property and premises, 
that is to say: All the right, title and 
interest, and possession and claim of 
possession, that William Hicks had on 
the 30th day of November, 1861, the 
29th day of November, 1862, and on 
the 19th day of November, 1864, or has 
since acquired, or now has in and to 
that certain tract of land situated part- 
ly in the County of San Joaquin, of 
the State of California, and known as 
the Rancho San Jose de los Moque- 
lumnes, containing eight square leagues 
of land, and which is accurately de- 
scribed in the patent dated the 30th 
day of May, 1865, from the United 
States to Angel Maria Chabolla and 
others, the heirs of Anastasio Chabolla, 
which patent, with the map accompany- 
ing the same, fixes and determines the 
boundaries of said rancho, and which 
was, on the 11th day of October, 18155, 
recorded in the office of the County 
Clerk and ex officio County Recorder 
of Sacramento County, in Book No. 1 of 
Patents, on pages 129 to 147 thereof, 
which record of said patent, for the 

vol m 



purposes of description, is hereby made 
part of this order, and him, the said 
John F. McCauley, in such possession 
thereof from time to time maintain, 
keep and defend, or cause to be kept, 
maintained and defended, according to 
the tenor and true intent of said de- 
cree and order of said Court. ' " 

50. Prahl V. Rogers, 127 Wis. 353, 

106 N. W. 287, omission of seal. 

51. Jeffers v. Davis, 85 Ark. 242, 

107 S. W. 1175; Tevis v. Hicks, 38 Cal. 
234. And see Reeves v. State, 145 Ala. 
510, 41 So. 927. 

When Alias Will Not Issue. — When 
several years had elapsed after the 
purchase of the property and after the 
original writ was returned executed, 
and neither the petition for the writ 
nor the proof thereunder negatives the 
presumption arising from the delay 
that the party in possession holds as 
tenant of the purchaser or under some 
other like claim of right, an alias writ 
will not issue. Ex parte Forma n, 130 
Ala. 278, 30 So. 480. 

52. Tevis v. Hicks, 38 Cal. 234, 
pointing out that a tenant in common 
has a right to the possession and oc- 
cupancy of the whole of the premises 
jointly with his co-tenant. < 

In a petition applying for a writ of 
mandamus directing the issue of a sec- 
ond writ of assistance, it being alleged 
that t'.ie petitioner had applied for and 
obtained a writ of assistance which 
was executed "by posting notice in 
two public places upon said land, the 



ASSISTANCE, WRITS OF 



153 



to fully execute the writ, or if he makes a false return thereunder, he 
is liable to the party aggrieved as for neglect of duty or false return. 5 " 

VIII. RELIEF AGAINST WRIT.-A. By Appeal. -The right of 
appeal from an order either granting or refusing a writ of assistance 



said Thomas R. McCartney not being 
found by the sheriff," the court said: 
"The defendant could not, on the 
facts presented, be held guilty of a con- 
tempt for a disobedience of the orders 
of the court. It is not shown that he 
knew, or ever heard of the issuance of 
the writ of assistance in the case re- 
ferred to." Ex parte Forman, 130 Ala. 
278, 30 So. 480. 

rorm of Return. — A return as fol- 
lows: "'I hereby certify and return, 
that T did, on the 11th day of May, 
1868, serve the annexed writ, by plac- 
ing John F. McCauley in the quiet and 
peaceable possession of all the interest 
and possession that William Hicks (de- 
fendant) had on the 30th day of No- 
vember, 1861, 29th day of November, 
1862, and the 10th day of November, 
1864, or has since acquired or had, in 
and to the land mentioned and re- 
ferred to in said writ, so far as the 
same could be ascertained by me, and 
that I did notify each and every per- 
son occupying the said land of the pos- 
session of the said John F. McCauley, 
and the said John F. McCauley de- 
clared himself satisfied with the service 
made above,' " does not sufficiently 
show a compliance with the writ. 
Tevis v. Hicks, 38 Cal. 234, 237. 
53. Tevis v. Hicks, 38 Cal.. 234. 
In Ontario the provisions of Rev. St. 
O., c. 40, §86, apply to writs of assist- 
ance, it being a writ of execution with- 
in the meaning of §11 of that Act, and 
is not in force after one year from the 
teste, if unexecuted, unless renewed. 
Adamson v. Adamson, 12 Ont. Pr. 21. 
See also Reeves v. State, 145 Ala. 510, 
41 So. 927. 

Form of Writ. — Habere facias pos- 
sessionem is in the nature of a writ of 
assistance of which the following is a 
form: " 'Maryland, sc. The State of 
Maryland, to the sheriff of Baltimore 
County, Greeting. Whereas by the 
original decree, passed in the Court of 
Chancery on, etc., in a cause wherein 
R. C. is complainant, and J. G. is de- 
fendant, it was decreed, etc. And 



whereas by a subsequent decree or 
order, made and passed in the said 
cause on the, etc., it was adjudged, etc. 
And whereas according to the decrees 
aforesaid, and in conformity therewith, 
on the, etc, an injunction did issue 
directed to the said J. G. his servants, 
slaves, agents, and all persons assist- 
ing him, and every and all other per- 
son and persons in possession of the said 
land, commanding that he the said J. 
G. and all and every person or per- 
sons aforesaid, should deliver the pos- 
session of the said land aud premises, 
and every part and parcel thereof, to 
the complainant R. C. and that he the 
said J. G. should cease from any 
further molestation of the said R. C 
in the quiet possession of the said land: 
And whereas it hath been represented 
to the said Court of Chancery, that on 
the 4th of March instant, at the county 
aforesaid, a true copy of the injunc- 
tion so as aforesaid issued was served 
on and delivered, in the presence of 
the said complainant, to the said J. G. 
and at the same time the original in- 
junction, with the great seal appendant 
thereto, was shewn to the said J. G. 
and that the said complainant R. C. did 
then and there request and demand of 
the said J. G. that he would deliver the 
possession of the land in the said writ 
mentioned, according to the directions 
of the said writ, which he the said J. 
G. absolutely refused to do; and that 
on the same day, and in manner afore- 
said, a true copy of the said writ of 
injunction was also shewn and de- 
livered to T. S. a tenant of the said 
J. G. and the original writ, with the 
great seal as aforesaid, was also shewn 
to the said T. S. and that the com- 
plainant R. C. then andthere made the 
same request and demand of the said 
T. S. which he then and there abso- 
lutely refused to comply with; and the 
said R. C. having applied to the said 
Court of CrTaneery for additional pro- 
cess to enforce the said decrees. 
Know ye therefore, that to complete 
and carry into full effect the decrees 

vol. m 



156 



ASSISTANCE, WRITS OF 



is generally conceded, 54 and in at least one jurisdiction has been ex- 
pressly sustained, 55 though in another a contrary view has been 
adopted. 56 

One not a party to the record cannot take an appeal from the order 
granting it. 67 

B. By Order Setting Aside. — 1. General Rule. — The remedy 
where the writ was" improperly issued or executed is by motion to va- 



of the said Court of Chancery, made 
and passed in manner aforesaid, the 
said Court of Chancery hath given, and 
from this time doth give to you, full 
power and authority to the land and 
premises aforesaid, situate in Balti- 
more County aforesaid, and in the de- 
crees and injunction aforesaid men- 
tioned and expressed, you approach and 
enter, and from thence the said J. G. 
and the said T. S. as well as all and 
every other person or persons in pos- 
session of the premises being, against 
the form and effect of the decrees and 
injunction aforesaid, you remove, and 
the said E. C. in full, quiet, and peace- 
able possession of all and singular the 
premises aforesaid, immediately, and 
from time to time, as often as neces- 
sary, you put and place; and that the 
said R. C. so being put and placed in 
possession, you protect and keep quiet; 
and therefore you are hereby com- 
manded, that immediately after the 
receipt of this writ, to the land and 
premises aforesaid you approach and 
enter, and the said J. G. and the said 
T. S. as well as all and every other per- 
son and persons in possession of the 
said land and premises being, against 
the form and effect of the decrees and 
injunction aforesaid, from the posses- 
sion thereof you remove, and to the 
said R. C. the full, peaceable, and quiet 
possession of all and singular the 
premises, you deliver, put and place, 
and so from time to time as often as 
necessary; and the said R. C. so being 
put in possession, you preserve, keep 
and continue, and cause to be preserved, 
kept and continued, according to the 
true intent of the decrees and writ of 
injunction aforesaid, and of this writ. 
Witness,' etc." Garretson v. Cole, I 
H. & J. '(Md.) 370, 389. 

54. Cal. — Hibernia Sav. & L. Soc. v. 
Robinson, 150 Cal. 140, 88 Pac. 720; 
Horn v. Volcano Water Co., 18 Cal. 141. 

voi.ni 



Idaho.— Harding v. Harker, 17 Idaho 
341, 105 Pac. 788, 134 Am. St. Rep. 259. 
111.— McCagg v. Touhy, 150 111. App. 15. 
Ind. — Emerick v. Miller (Ind. App.), 
62 N. E. 284. Mich.— Flint Land Co. v. 
Grand Rapids Terminal R. Co., 147 
Mich. 627, 111 N. W. 192, 101 Am. St. 
Rep. 645; Tucker v. Stone, 99 Mieh. 
419, 58 N. W. 318. Neb.— Clark & 
Leonard Inv. Co. v. Lingren, 76 Neb. 
59, 107 N. W. 116; Merrill v. Wright, 65 
Neb. 794, 91 N. W. 697, 101 Am. St. 
Rep. 645. Pa.— Pittsburg, J. E. & E. 
R. Co. v. Altoona & B. C. R. Co., 203 
Pa. 108, 52 Atl. 13. Wis.— Schultz v. 
Schultz, 133 Wis. 125, 113 N. W. 445, 
126 Am. St. Rep. 934. 

Recital in Order Appealed From.— 
When upon a hearing for a writ of 
assistance reference is made to records, 
files and proceedings in the original ac- 
tion and the proceedings for leave to 
enforce the judgment, they should be 
recited in the order allowing the writ 
of assistance and on appeal should be 
transmitted to the appellate court. 
Schultz v. Schultz, 133 Wis. 125, 113 
N. W. 445, 126 Am. St. Rep. 934. 

55. Baker v. Pierson, 5 Mich. 456, 
holding that such an order, though dis- 
cretionary in the same sense as an or- 
der granting or refusing an injunction, 
is a final order determinative of a 
party's right in the case. 

When a defendant appeals from the 
order granting the writ, but omits to 
appeal from a further order refusing to 
vacate the writ, the appeal will be dis- 
missed as it would be of no service to 
reverse the first order and leave the 
latter order affirming it in force. Horn 
v. Volcano Water Co., 18 Cal. 141. 

56. Bryan v. Sanderson, 3 MacAr- 
thur (D. C.) 402. 

57. People v. Grant, 45 Cal. 97, his 
remedy being by motion to set aside the 
writ, or, after eviction, by motion to 
be restored to possession. 



ASSISTANCE, WRITS OF 



157 



cate," and the court granting it may on summary motion set aside the 
writ or the service, 50 and restore the party dispossessed to possession. 80 

2. Who May Make Motion. — This motion may be made by one not 
a party to the record. 61 

3. Ruling on Application Appealable. — An order refusing to va- 
cate the order granting a writ of assistance is appealable, 82 as is also 
the refusal of the application to restore a party to possession on vacat- 
ing the order. 63 

C. By Restraining Execution of Writ. — 1. The Rule. — One in 
possession under claim of title may also protect his possession by a 
motion to restrain the execution of the writ. 64 

2. Appeal From Order. — An appeal will lie from an order refus- 
ing to restrain the execution thereof. 65 



58. Ala.— Wiley v. Carlisle, 93 Ala. 
237, 9 So. 288. Cal. — Skinner v. Beatty, 
16 Cal. 157. Colo.— Herr v. Sullivan, 26 
Colo. 133, 56 Pac. 175. Md.— Waters 
V Duvall, 6 Gill & J. 76. N. Y.— 
Meiggs v. Willis, 8 N. Y. Civ. Proc. 125. 
Wis.— Prahl v. Rogers, 127 Wis. 353, 
106 N. W. 287. 

But the question whether the writ 
was properly granted cannot be re- 
viewed collaterally in another court. 
Rawiszer v. Hamilton, 51 How. Pr. 
(N. Y.) 297. 

59. Skinner v. Beatty, 16 Cal. 157. 

60. Skinner v. Beatty, supra; Meiggs 
v. Willis, 8 N. Y. Civ. Proc. 125. 

Where the tenant was ousted the 
landlord may make motion. McChord 
v. McClintock, 5 Litt. (Ky.) 305. 

If the order granting the writ is set 
aside, the court should in the same 
order also restore to possession the 
party dispossessed. Chamberlain v. 



Choles, 35 N. Y. 477, 3 Abb. Pr. (N. S.) 
477. See also People v. Johnson, 38 
N. Y. 63. But see Lombar v. Atwater, 
46 Iowa 501, holding it not to be matter 
of course, but that question of right of 
possession should first be determined. 

61. People v. Grant, 45 Cal. 97; Mills 
v. Smiley, 9 Idaho 317, 76 Pac. 783. 
And see McChord v. McClintock, 5 Litt. 
(Ky.) 304. 

62. Cal. — City of San Jose v. Ful- 
ton, 45 Cal. 316. Fla,— Ray v. Trice, 
48 Fla. .297, 37 So. 582. Idaho.— Mills 
v. Smiley, 9 Idaho 317, 76 Pac. 783. 
Mich. — See Tucker v. Stone, 99 Mich. 
419, 58 N. W. 318. 

63. Chamberlain v. Choles, 35 N. Y. 
477, 3 Abb. Pr. (N. S.) 118. 

64. Hibernia Sav. & L. Soc. v. Rob- 
inson, 150 Cal. 140, 88 Pac. 720; Pignaz 
v. Burnett, 119 Cal. 157, 51 Pac. 48. 

65. Hibernia Sav. & L. Soc. v. Rob- 
inson, 150 Cal. 140, 88 Pac. 720. 

Vol. HI 



ASSOCIATIONS 

By JOHN F. CROWE, 
Sometime Editor of the Encyclopaedia of Evidence. 

I. DEFINITION, 158 

II. ACTIONS BY OR AGAINST ASSOCIATIONS, 160 

A. Capacity, 160 

B. Who Should Be Made Parties, 162 

1. Members, 162 

2. Officers, 163 

C. Pleading, 164 

1. Petition, 164 

2. Pleas, 164 

CROSS-REFERENCE : 

Beneficial Associations. 



I. DEFINITION. — An association is an organization of persons 
without a charter, for business, humanity, charity, culture, or other 
purposes; any unincorporated society or body; 1 and is to be distin- 



1. Anderson's Law Diet., title " As- 
sociations." Cal.— Gorman v. Russell, 
14 Cal. 531; Bullard'v. Kinney, 10 Cal. 
60. Ind. — Laycock v. State, 136 Ind. 
217, 36 N. E. 137. Me.— Smith v. Vir- 
gin, 33 Me. 148. Mass.— Tyrrell v. 
Washburn, 6 Allen 466. Mich.— U. S. 
Heater Co. v. Iron Molders' Union, 129 
Mich. 354, 88 N. W. 889; Butterfield v. 
Beardsley, 28 Mich. 412. N. Y.— 
Ebbinghousen v. Worth Clube, 4 Abb. 
N. C. 300. Pa.— Leech v. Harris, 2 
Brewst. 571. 

"The legal status of unincorporated 
societies and voluntary associations has 
not been very satisfactorily _ deter- 
mined on many points. While the 
courts will generally treat the mem- 
bers as ordinary partners and the asso- 
ciations as partnerships, they will, as 
far as possible, give effect to the ar- 
ticles of association or agreement 
among the members themselves, when 
they themselves are the only ones in- 
terested. If such an- association be 
organized for pecuniary profit, so far 
as the rights of third persons and lia- 
bilities of the members to strangers are 
concerned, such association is usually 
considered as a partnership. Robbins 

vol. ni 



v. Butler, 24 111. 387; Hodgson v. Bald- 
win, 65 111. 532; Wadsworth v. Duncan, 
164 111. 360, 45 N. E. 132;. People v. 
Rose, 219 111. 46, 76 N. E. 42; Ashley v. 
Dowling, (Mass.) 89 N. E. 434, 25 Am. 
& Eng. Ency. of Law (2d ed.) pp. 1130- 
1136; 1 Bacon on Benefit Societies and 
Life Insurance (3d ed.) c. 2; Donald v. 
Guy (D. C.) 127 Fed. 228; Baltimore 
Trust & Guaranty Co. v. Hambleton, 84 
Md. 456, 36 Atl. 597, 40 L. R. A. 216, 
and note." Hossack v. Ottawa De- 
velopment Assn., 244 111. 274, 91 N. E. 
439, 445. 

The Term Association. — "There was 
nothing incompatible with this view in 
the constant previous use of the word 
association. This is said to signify 
'Confederacy, or union for particlai 
purposes, good or ill.' Johns. Diet. 4to. 
Association, 2. In that sense it is a 
generic term, and may indifferently 
comprehend a voluntary confederacy, 
which is a partnership dissoluble by 
the persons who formed it, or a cor- 
porate confederacy, deriving its exist- 
ence from a statute, and dissoluble ouly 
by the law." Thomas v. Dakin, 22 
Wend. (N. Y.) 1, 104. 



ASSOCIATIONS 159 

guished from a partnership, 2 or a public or private corporation. 3 



2. Ala.— Burke v. Koper, 79 Ala. 
138. Mich. — Burt v. Lathrop, 52 Mich. 
106, 17 N. W. 716. N. Y.— Lumbard v. 
Grant, 62 App. Div. 617, 71 N. Y. Supp. 
1141; Boston Baseball Assn. v. Brook- 
lyn Baseball Club, 37 Misc. 521, 75 N. 
Y. Supp. 1076; Niagara County v. Peo- 
ple, 7 Hill 504; White v. Brownell, 3 
Abb. Pr. (N. S.) 318. Ohio.— Webster 
V. Taplin, 29 Ohio C. C. 543. Pa.— Ash 
V. Guie, 97 Ta, 493, 39 Am. Rep. 818; 
Leech v. Harris, 2 Brewst. 571; Thomas 
v. Ellmaker, 1 Pars. Eq. Cas. 98, 107. 
Vt. — Tenny v. Protection Union, 37 Vt. 
64. 

"Such an association is not a part- 
nership, and to render a member liable 
as a principal on contracts made by 
the persons or committees who manage 
and assume to act for the association, 
it must be shown that they are express- 
ly or impliedly authorized to represent 
and bind him." Brower v. Crimmins, 
67 Misc. 68, 121 N. Y. Supp. 648. 

Assumpsit Will Lie by Association 
Against Former Member. — "This is 
assumpsit for money had and received. 
The plaintiff is a beneficial association, 
unincorporated. The agreed statement 
of facts shows that while a member of 
the association the defendant received 
of the funds belonging to it $13.86, 
which he still retains, though he had 
ceased to be a member of the associa- 
tion before the bringing of the suit. 
The court below held that the action 
could not be maintained because the 
association, not being incorporated, 
must be regarded as a partnership. We 
think this was error. The essential 
element of a partnership, as between 
its members, is the agreement to share 
profits and losses. This element is 
wanting in voluntary associations, such 
as the plaintiff, formed for social or 
charitable purposes and the like, and 
not for the purpose of trade or profit, 
and hence they do not stand on the 
footing of a partnership. * * * The 
property of such an association is a 
mere incident to the purpose of the 
organization, and a member has no 
proprietary interest in it nor right to 
any proportional part of it, either dur- 
ing his continuance in the partnership 
or upon his withdrawal. He has mere- 



ly the use and enjoyment of it while a 
member, the property belonging to and 
remaining with the society." Textile 
Workers Union v. Barrett, 19 R. I. 663, 
36 Atl. 5. 

Treated as Partnerships. — "All com- 
panies, societies, or partnerships, what- 
ever might be the number of their 
members or partners, and of whatever 
nature or extent the object undertaken, 
which were not confirmed by public 
authority, that is, incorporated by act 
of Parliament, or charter, or privileged 
by letters patent, were in law nothing 
more than ordinary partnerships, con- 
sisting of two or three partners, and 
undertaken for private purposes. Coll- 
yer on Part. Sec. 1078. The same doc- 
trine is recognized in the case of Babb 
v. Read, 5 Rawle 158, where the mem- 
bers of a society of Odd Fellows were 
treated as partners; and also in all that 
class of cases not within those properly 
denominated charities, in Thomas v. 
Ellmaker, 1 Parson's Select Eq. Cas. 98. 
A somewhat different rule, so far as the 
liability of the members of an unin- 
corporated company of a public charac- 
ter, was adopted by Chancellor Kent, 
in Livingston, Executor of Fulton v. 
Lynch, 4 Johns. Ch. 573, which was a 
company for the purpose of navigating 
the Hudson by steam; the chancellor 
there holding, that the members held 
as tenants in common, and not as part- 
ners. But says the chancellor, in 
speaking of the articles, that they were 
binding upon all the members when 
adopted by all, as a solemn private 
contract." Pipe v. Bateman, 1 Iowa 
369, 372. 

3, TJ. S. — United States v. Trinidad 
Coal, etc. Co., 137 U. S. 161, 11 Sup. 
Ct. 57, 34 L. ed. 640. Conn. — Davison 
v. Holden, 55 Conn. 103, 10 Atl. 515, 3 
Am. St. Rep. 40. la.— Ml' M inhale v. 
Barney, 4 Greene 106. Minn. — State v. 
Steele, 37 Minn. 428, 34 N. W. 903. 
N. Y. — Niagara County v. People, 7 
Hill 504. 

None But a "Person" Can Be Party 
to a Suit. — "None but a natural or 
artificial person can become a party to 
a suit. An unincorporated association, 
siK'h as a Masonic lodge cannot be rec- 
ognized as a person or party at law, 

Vol. m 



160 



ASSOCIATIONS 



II. ACTIONS BY OR AGAINST ASSOCIATIONS. -A. Capac- 
ity.— At common law an association could not sue in its own name, 4 
but only in the names of the individual members. 5 In equity, how- 
ever, the harshness of this rule has long been modified. 6 And by stat- 
ute in some states an association is made competent to sue in its own 



and hence cannot sue or be sued." 
Nightingale v. Barney, 4 ■ Greene 
(Iowa) 106. 

Distinguished From Corporations. — 
"It is not so with these associations. 
They have some privileges and attri- 
butes conferred upon them by the gen- 
eral act to authorize the business of 
banking, resembling those usually ex- 
ercised by corporations; but they are 
sucn as are held in common with part- 
nership associations, and may be ex- 
ercised and conferred without creat- 
ing a 'body corporate and politic' 
These institutions differ from corpor- 
ations in this respect, that the individ- 
uals composing the association act by 
an agency authorized and sanctioned 
by the law. A 'corporation or body 
politic' acts in its own person." 
Supervisors of Niagara v. People, 7 
Hilr (N. Y.) 504, 507. 

4 XJ. S. — American Steel, etc., Co. v. 
Wire Drawers' & D. M. Union, 90 Fed. 
598. Ala. — Ex parte Hill, 51 So. 786. 
Conn. — Huth v. Humboldt Stamm, 61 
Conn. 227, 23 Atl. 1084. Did. — Pollock v. 
Dunning, 54 1ml. 115; Farmers' Mutual 
r. Poser, 43 Tnd. App. 634, 88 N. E. 349. 
I a _Wc-st,hrook v. Griffin, 132 Towa 
185, 109 N. W. 608; Pipe v. Bateman, 
1 Towa 369; Nightingale v. Barney, 4 
Greene 106. Ky. — Nichols v. Bardwill 
Lodge, 105 Kv. 168, 48 S. W. 426; 
Soper v. Clay L. Co., 21 Ky. L. Rep. 
933, 53 S. W. 267. Mich.— Schuetzen 
Bund v. Agitations Verein, 44 Mich. 
313, 6 N. W. 675, 38 Am. Rep. 270. 
Minn. — St. Paul Typothetae v. St. 
Paul Bookbinders' Union, 94 Minn. 
351, 102 N. W. 725. Mo. — State ex 
rrl. Attorney General v. Stock Ex- 
change, 211 Mo. 181, 109 S. W. 675, 
124 Am. St. Rep. 776; Hijek v. Benevo- 
lent Soc, 66 Mo. App. 568. Mont — 
Vance r. McCinlev, 39 Mont. 46, 101 
Prtc. 247. R. I.— Guild V. Allen, 28 R. 
T. 430, fu Atl. '855. 

Obiection Mnst Be Made in Time.— 
"The objection to the name of the 
respondents conies too late. They 
■waived process, appeared by the name 
in which they were sued, and have 

vol m 



answered without taking the excep- 
tion." Deems v. The Albany & Canal 
Line, 14 Blatch. C. C. 474, 7 Fed. Cas. 
No. 3,736. 

5. Fla. — Richardson V. Smith & Co., 
21 Fla. 336. 111.— Merchants Under- 
writers V. Parkhurst — D. Merc. Co., 
131 HI. App. 617. Ind. — Mackenzie v. 
School Trustees, 72 Ind. 189. la.— 
Westbrook if. Griffin, 132 Iowa 185, 
109 N. W. 608. La.— Soller v. Mouton, 
3 La. Ann. 541. Me. — McGreary v. 
Chandler, 58 Me. 537. Md — Mears v. 
Moulton, 30 Md. 142. Minn.— St. Paul 
Typothetae v. St. Paul Bookbinders' 
Union, 94 Minn. 351, 102 N. W. 725. 
Neb. — Cleland v . Anderson, 66 Neb. 
252, 92 N. W. 306, 5 L. R. A. (N. S.) 
136. R. I.— Guild v. Allen, 28 R. I. 
430, 67 Atl. 855. 

Association May Sue for Libel. — 
"They being then members of an un- 
incorporated association might have 
brought suit for the libel, if such it 
were, as individuals having a common 
interest in tlie business alleged to 
have been injuriously affected by the 
issue of the circular letter complained 
of." National Shutter Bar Co. v. 
Zimmerman & Co., 110 Md. 313, 73 Atl. 
19. 

6. Lloyd v. Loaring, 6 Ves. Jr. 773, 
31 Eng. Reprint 1302. See: U. S.— 
Beatty v. Kurtz, 2 Pet. 566, 7 L. ed. 
521. "ill. — Guilfoil v. Arthur, 158 111. 
600, 41 N. E. 1009; Chicago Typ. Un- 
ion v. Barnes & Co., 134 111. App. 11. 
Mass. — Birmingham v. Gallagher, 112 
Mass. 190. Neb. — Branson v. Indus- 
trial Workers, 30 Nev. 270, 95 Pac. 
354. Ore.— Liggett v. Ladd, 17 Ore. 
89, 21 Pac. 133. Pa.— Klein V. Rand, 
35 Pa. Super. 263. 

But in such case suit can be main- 
tained only by showing that all par- 
ties have a common interest and the 
interest must appear "to be such as 
would entitle them, were they all be- 
fore the court, to maintain the action 
in their own right, or in their own 
name." Habicht v. Pemberton, 4 
Sandf. (N. Y.) 657. 

A Plain Remedy.— The case of 



ASSOCIATIONS 



161 



name, 7 or in the names of members or officers for the use of the asso- 
ciation. 8 

By the statutes of one state it is provided that an action or special 
proceeding may be maintained by or against certain named officers 
of an unincorporated association consisting of at least seven persons, 
upon any cause of action for or upon which all the associates may 
sue or be sued. 9 It has also been held that the remedy provided by 



Maisch v. Order of Americus, 223 Pa. 
199, 72 Atl. 528, was an action in as- 
sumpsit on an obligation of the or- 
ganization, and the court held that the 
order was not a legal entity and, there- 
fore, could not be a party defendant, 
but said: "A plain remedy remains, 
however, in the courts of equity, in 
which suit may be brought against 
some of the members of an unincor- 
porated association, as representing 
themselves, and all others having the 
same interest. In this way, as pointed 
out in Fletcher v. Gawanese Tribe, 9 
Pa. Super. Ct. 393, 'though the treas- 
ury alone shall respond for a debt 
found to be due, those in control of 
the treasury may be compelled to see 
that the treasury meets its liabilities 
by payment. ' " 

7. Cal. — Davidson v. Knox, 67 Cal. 
143, 7 Pac. 413. Conn.— Davison v. Hol- 
den, 55 Conn. 103, 10 Atl. 515, 3 Am. 
St. Rep. 40. Md.— Littleton v. Wells, 98 
Md. 453, 56 Atl. 798; Powhatan S. S. 
Co. v. Potomac S. S. Co., 36 Md. 238. 
Mich. — Detroit Light Guard Band V. 
First Mich. Independent Infantry, 134 
Mich. 598, 96 N. W. 934; United States 
Heater Co. v. Iron Molders' Union, 
129 Mich. 354, 88 N. W. 889. Minn.— 
Gale v. Townsend, 45 Minn. 357, 47 N. 
W. 1064. Mont. — Vance v. McGinley, 
39 Mont. 46, 101 Pac. 247. Ohio.— 
Jackson v. Akron Brick Assn., 53 Ohio 
St. 303, 41 N. E. 257, 53 Am. St. Rep. 
637, 35 L. R. A. 287, holding that an 
association formed for an illegal pur- 
pose or one contrary to public policy, 
as for example, controlling the price 
of brick, cannot sue in its associate 
name. 

"It is very true that at common law 
such unincorporated associations were 
not suable in their associated names, 
and that suit had to be brought against 
the members of such associations or 
organizations. The evident purpose 



of this statute was to change this rule, 
so as to make them suable in the 
courts of this state in their associated 
or club names, and to provide that 
service might be effected upon them 
by serving the process upon their offi- 
cers. It therefore follows that the 
court erred." Ex parte Hill (Ala.), 51 
So. 786. 

8. Payne v. McClure Lodge (Ky.) 
115 S. W. 764; Vance v. McGinley, 39 
Mont. 46, 101 Pac. 247. 

"This practice finds ample support 
in section 25, Civ. Code Prac, pro- 
viding that: 'If the questions involve 
a common or general interest of many 
persons, or if the parties be numerous 
and it is impracticable to bring all of 
them before the court within a rea- 
sonable' time, one or more may sue 
or defend for the benefit of all.' As 
the relief sought against appellant was 
for the use and benefit of the lodge, 
and the judgment directed that he 
make a deed to it, we are unable to 
perceive in what particular appellant's 
rights were affected by the failure of 
the members in whose names the suit 
was brought to produce evidence of 
their authority." Pavne v. McClure 
Lodge No. 539 (Ky.), 115 S. W. 704. 

9. N. Y. Civ. Proc. §1919. See 
Curran v. Galen, 152 N. Y. 33, 46 N. 
E. 297, 57 Am. St. Rep. 496, 37 L. R. 
A. 802; Schwarcz v. International La- 
dies' G. W. Union, 68 Misc. 528. 124 
N. Y. Supp. 968; Weidenfeld v. Kepp- 
ler, 84 App. Div. 235, 82 N. Y. Supp. 
634; McCabe v. Goodfellow, 15 N. Y. 
Supp. 377, 39 N. Y. St. 941. 

In Barzilay v. Loewenthal, 134 App. 
Div. 502, 119 N. Y. Supp. 012. which 
was an action by certain members on 
an agreement under seal between two 
unincorporated associations, the court 
held that they could not maintain the 
action, they not being named in the 
agreement. 

Vol. TXL 



162 



ASSOCIATIONS 



such statutes is not exclusive and that suit may. be brought according 
to the rules at common law, notwithstanding their provisions. 10 

In the absence of an enabling statute suit must be brought against 
the individual members of the association rather than against the 
association, as in the case of partnerships. 11 The rule forbidding suits 
by such association equally forbids suits by a member against the 
association. 12 Such a suit, however, is allowable under some of the 
statutes above referred to. 13 

B. Who Should Be Made Parties. — 1. Members. — In the ab- 
sence of legislation otherwise an action at law by a voluntary asso- 
ciation must be brought in the names of its members, and not in the 
name of the company, 14 or it may be brought in the name of one or 



10. Conn. — Davison v. Holden, 55 
Conn. 103, 10 Atl. 515, 3 Am. St. Rep. 
40. Mich.— Detroit Light Guard Band 
v. First Mich. Independent Infantry, 
134 Mich. 598, 96 N. W. 934. N. Y — 
Peckham v. Wentworth, 116 N. Y. 
Supp. 781. Tex.— Rhodes v. Maret, 45 
Tex. Civ. App. 593, 101 S. W. 278. 

11. Conn, — Davison v. Holden, 55 
Conn. 103, 10 Atl. 515, 3 Am. St. Rep. 
40. Ind. — Karges Furn. Co. v. Amal- 
gamated "Woodworkers ' Union, 165 
Ind'. 421, 75 N. E. 877, 2 L. R. A. (N. 
S.) 788; Farmers' Mutual v. Reser, 43 
Ind. App. 634, 88 N. E. 349. Minn.— 
St. Paul Typothetae v. St. Paul Book- 
binders' Union, 94 Minn. 351, 102 N. 
W. 725, holding that the statute au- 
thorized suit against such association 
but not by it. R. I. — Guild v. Allen, 
28 R. I. 430, 67 Atl. 855. 

12. Cal.— Bullard V. Kinney, lO.Cal. 
60. Conn. — Huth v. Humboldt, 61 
Conn. 227, 23 Atl. 1084. N. Y— Mc- 
Mahon v. Rauhr, 47 N. Y. 67. Vt — 
Cheeny v. Clark, 3 Vt. 431, 23 Am. 
Dec. 219. 

Member Cannot Sue Association. — 
"If without that statute a member of 
a voluntary association could not insti- 
tute and maintain an action at law 
against the association, he cannot 
maintain one by reason of that statute. 
That the statute confers any right 
on a member, or imposes any liability 
on the association, such as can arise 
only out of the law of corporations, 
would seem to be excluded by its lan- 
guage. It speaks of an association 
'not having corporate powers.' Apart 
from this statute the law is clear that 
a member of an unincorporated asso- 
ciation eannot maintain an action at 

vol. m 



law against the association, nor can 
the association maintain such an 
action against one of its members." 
Huth v. Humboldt Stamm, 61 Conn. 
227, 23 Atl. 1084. 

13. Westcott v. Fargo, 61 N. Y. 
542, 19 Am. Rep. 300; Boston Baseball 
Assn. v. Brooklyn Baseball Club, 37 
Misc. 521, 75 N. Y. Supp. 1076. 

14. U. S.— Metal Stamping Co. v. 
Crandall, 17 Fed. Cas. No. 9,493c. Fla. 
Richardson v. Smith & Co., 21 Fla. 
336. 111.— O'Connell v. Lamb, 63 111. 
App. 652. Ind. — Mackenzie v. School 
Trustees, 72 Ind. 189. la.— Pipe t;. 
Bateman, 1 Iowa 369. Md.— Mears v. 
Moulton, 30 Md. 142. Minn.— St. Paul 
Typothetae v. St. Paul Bookbinders' 
Union, 94 Minn. 351, 102 N. W. 725. 
N. Y. — Habicht v. Pemberton, 4 Sandf. 
657. Ohio. — Higdon v. Gardner, 2 
Ohio C. C. 340. Tex.— Ackerman v. 
Schuetzen Verein (Tex. Civ. App.), 60 
S. W. 366. Utah. — Pearson v. Ander- 
burg, 28 Utah 495, 80 Pac. 307. 

Use Name To Distinguish. — * < In sup- 
port of the demurrer in behalf of the 
Traders' Live Stock Exchange, the 
point is made that it is a mere volun- 
tary association and therefore it has 
no legal entity, it can neither su« 
nor be sued. The association as such 
has no legal entity and therefore can 
neither sue nor b- sued, but in the 
case at bar the defendants are the 
individuals and corporations that com- 
pose the Exchange and the name 
'Traders' Live Stock Exchange' mere- 
ly serves to distinguish those defend- 
ants in their associated capacity." 
State ex rel. Attorney Genoral v. Stock 
Exchange, 211 Mo. 181, 190, 109 S. W. 
675, 124 Am. St. Rep. 776. 



ASSOCIATIONS 



163 



more members for the use of all of the members of the association." 

2. Officers. — In the absence of statutory authorization a suit can- 
not be brought by or against an officer of a voluntary association in 
his official capacity. 16 And when it is allowable to sue officers as 
representing the association, it is necessary to show a joint liability. 17 



Bill Signed by Members. — "At the 
foot of the bill following the verifica- 
tion appears the following: 'We the 
undersigned, members of complainant 
association, hereto affix our seals and 
consent and request that action be 
brought in court by the filing of the 
foregoing bill of complaint.' This is 
signed by the members of the Chica- 
go Typothetae, for whom and in whose 
right the bill was filed and the relief 
prayed. * * * "We think, however, 
that the firms and corporations who 
signed the bill in the manner above in- 
dicated were parties to the bill and 
were bound and would be bound by 
the proceedings as effectually as if 
they signed the bill in the ordi- 
nary and more formal way. The bill 
was filed and the relief was asked for 
in their behalf, and it was based on 
their right. Although the form and 
manner of their signatures to the bill 
is unusual, it is in essence and sub- 
stance their bill signed by tham." 
Franklin Union No. 4 v. People, 121 
111. App. 647, 653. 

15. Cal. — Florence v. Helms, 136 
Cal. 613, 69 Pac 429. la.— Pipe v. 
Baneinan, 1 Iowa 369. Mass. — Snow 
v. Wheeler, 113 Mass. 179; Birming- 
ham v. Gallagher, 112 Mass. 190. N. 
J.— Van Houten v. Pine, 36 \N. J. Eq. 
133. N. C. — Marshall v. Lovelass, 1 
N. C. 325. Ore.— Liggett v. Ladd, 17 
Ore. 89, 21 Pac. 133. Utah.— Pearson 
v. Arderburg, 28 Utah 495, 80 Pac. 
307. 

Injunction Will Lie Against an Un- 
incorporated Labor Union by Name. — 
"In view of these authorities, supple- 
menting the rulings of our Supreme 
Court, I entertain no doubt that the 
injunction will lie against an unin- 
corporated labor union by the name 
(which is but the 'collective name of 
all its members') when sued together 
with one or more of its members in- 
dividually upon whom service may be 
had in their representative capacity, 
and that such injunction will be bind- 
ing upou the body as an entity and 



against all its members, whether or 
not they be directly represented." 
Hillenbrand v. Trades Council, 14 Ohio 
N. P. Dec. 628, 651. 

16. Ala. — Ewing v. Medlock, 5 
Port. 82. Cal. — Gieske v. Anderson, 77 
Cal. 247, 19 Pac. 421. La.— Soller v. 
Mouton, 3 La. Ann. 541. Me. — Mc- 
Greary v. Chandler, 58 Me. 537. Mo. 
Miller Lumb. Co. v. Oliver, 65 Mo. 
App. 435. 

Contra. — In McDonald v. Laughlin, 
74 Me. 480, the court held that a note, 
the property of the society, made pay- 
able to "the order of the treasurer 
of the India Street Universalist So- 
ciety," but not naming him, was sua- 
ble in the name of the person who was 
treasurer at the date of the writ. 

Trustees May Sue. — The trustees of 
a voluntary association may maintain 
an action in its behalf. Allen v. Duf- 
fle, 43 Mich. 1, 4 N. W. 427, 38 Am. 
Rep. 159. So if a note is payable to 
the trustees, action can be brought in 
their names, and if their term has 
expired then their successors may main- 
tain an action in the name of the 
original trustees at the request of the 
association, notwithstanding tli'it the 
original trustees have given a ,elease. 
Pierce v. Robie, 39 Me. 205, J3 Am. 
Dec. 614. See also Marsh v. Astoria 
Lodge, 27 111. 420. 

17. Powell Co. v. Finn, 198 HI. 567, 
64 N. E. 1036. 

"This action is controlled by the 
rule in McCabe v. Goodfellow, 133 N. 
Y. 89, 30 N. E. 728, 17 L. R. A. 204; 
that in order to succeed the plaintiff 
must show that all the members of the 
association are liable either jointly or 
severally to pay the debt, and that the 
individual liability for- debts contract- 
ed by officers or committees depends 
upon the application of the principal 
of the law of agency; that authority 
to create such liability will not be pre- 
sumed or implied from the existence 
of a general power to attend to or 
transact business or promote the ob- 
jects for which the association ia 

Vol. HI 



164 



ASSOCIATIONS 



C. Pleading.— 1. Petition. — The petition should set out clearly 
and certainly the character in which plaintiff sues, showing its capac- 
ity to bring the action, and the nature of its claim. 18 

2. Pleas. — Objections to petition for want of capacity to sue or 
non-joinder of parties must be made in the suit, and if not so made 
will be considered waived. 19 



formed, except when the debt con- 
tracted is necessary for its preserva- 
tion." Siff v. Forbes, 135 App. Div. 
39, 119 N. Y. Supp. 773. 

Davis v. Young, 123 N. Y. Supp. 363, 
was an action upon certificates of in- 
debtedness for strike benefits. The 
court said: "To sustain his cause of 
action the plaintiff must show that the 
officers who made this contract were 
authorized to pledge the personal 
credit of its members for the payment 
of these certificates. The plaintiff 
must show the agency, for none is im- 
plied by. the mere fact of the associa- 
tion. 'In this respect there is a plain 
distinction between associations formed 
for the purpose of pecuniary profit 
and those formed for other objects.' 
McGabe v. Goodfellow, 133 N. Y. '89, 
30 N. E. 728, 17 L. R. A. 204." 

Must Show Authorization. — "He de- 
pended upon the individual representa- 
tions of an officer of the association as 
to what was the purpose of the va- 
cant lots when the land was plotted 
and delineated upon a plan. Tt does 
not appear that these representations 
were authorized by the association, and 
so were ineffectual." Brown v. 
Dickey, 106 Me. 97, 75 Atl. 382. 

18. Cal. — Welsh v. Kirkpatrick, 30 
Cal. 202, 89 Am. Dec 85. Ind.— Pol- 
lock v. Dunning, 54 Ind. 115. Kan. — 
McLaughlin v. Wall, 81 Kan. 206, 105 
Pac. 33. Mass. — Wilkinson v. Stitt, 
175 Mass. 581, 56 N. E. 830. Ohio.— 
Higdon v. Gardner, 2 Ohio C. C. 340. 
Tex. — Ackerman v. Schuetzen Verein 
(Tex. Civ. App.), 60 S. W. 366. Wis. 
Chickering Lodge V. McDonald, 16 
Wis. 112. 

Complaint Sufficient. — " The title 
and body of the petition show that the 
action is brought by an association of 
individuals as an entity, the character 
of which is fully described, but in their 
own names, so that capacity to sue 
appears. The petition does not dis- 
close a joint ownership or tenancy in 
common of the property with the de- 

voi. ni 



fendants. It shows ownership by the 
association, of which the defendants 
are no longer members. The allega- 
tions respecting ownership by the as- 
sociated plaintiffs are plain enough. 
Since the facts are stated it is not 
necessary to name the kind of owner- 
ship by calling it either general or 
special. If the so-called disjunctive 
allegation confused the matter, then 
the amendment ought to have been al- 
lowed. The petition shows that the 
defendants withdrew from the associa- 
tion but wrongfully keep its property, 
hence a formal allegation of demand 
is not essential. The allegations of 
value in the petition control in this 
proceeding. If, as the petition alleges, 
the defendants are not members of the 
order they have no standing to invoke 
its laws, but if they have there is 
nothing in the laws pleaded to pre- 
vent the civil courts from settling the 
title to this property." McLaughlin 
v. Wall, 81 Kan. 206, 105 Pac. 33. 

Necessary Allegations. — ' ' Such a 
suit is considered as being brought by 
all the members of the plaintiff class 
against all the members of the defend- 
ant class, each class being represented 
by the particular members named in 
the bill, as parties plaintiff and de- 
fendant; it is not a suit which must 
be brought by an officer or under au- 
thority given so to do. In such a 
suit, the proper allegations as to why 
all the members of each class are not 
joined must be made in the bill, and 
the court must be satisfied at the hear- 
ing that those bringing the suit in 
behalf of all the plaintiffs and those 
against whom the suit is brought, as 
representing all the defendants, fairly 
represent the members of the class 
in question." Wilkinson v. Stitt, 175 
Mass. 581, 584, 56 N. E. 830. 

19. U. S. — Deems v. Albany & Canal 
Line, 14 Blatchf. C. C. 474, 7 Fed Cas. 
No. 3,736. 111.— Barnes & Co. v. Chi- 
cago Union, 232 111. 402, 83 N. E. 932, 
122 Am. St. Rep. 128. N. Y.— Peck- 



ASSOCIATIONS 



1G5 



ham v. Wentworth, 116 N. Y. Supp. 
781. Ohio.— Webster v. Taplin, 29 
Ohio C. C. 543. 

Not Raised hy General Denial. — 
"The defendants simply interposed a 
general denial. I believe that the 
non-joinder of the parties defendant 
was not sufficiently raised by the plea 
interposed. Had it been properly 
raised, there would be no question that 
the defect would be a bar to this ac- 
tion. . . . Where there is a -de- 
fect of parties, plaintiff or defendant, 
and the defendant does not demur or 
answer on this ground, he cannot for 
the first time raise the question on the 
trial; and net taking it as provided in 



the code, it is deemed waived." Peck- 
ham v. Wentworth, 116 N. Y. Supp. 
781. 

Objection Should Be Raised by An- 
swer.— The suggestion that the reme- 
dies within the organization for the 
collection of these payments have not 
yet been exhausted, and that an ac- 
tion cannot be maintained until they 
have been, we think should be made 
by answer, and it is not necessarily 
raised by demurrer. The demurrer 
should have been overruled, and for 
error in sustaining it the judgment is 
reversed. Webster v. Taplin, 29 Ohio 
C. C. 543. 



Vol. HI 



ASSUMPSIT 

By HUGH E. WILLIS, 
Assistant Professor of Law,. University of Minnesota ; author of ' ' Willis on Con- 
tracts;" "Willis on Damages," etc. 



I. UNDER COMMON LAW PROCEDURE, 170 

A. Definition, 170 

B. History and Scope, 170 

C. Classification, 174 

1. General Statement, 174 

2. Special Assumpsit, 175 

a. Definition, 175 

b. History, 175 

c. Scope, 177 

(I.) When Action Will Not Lie, 177 

(A.) Judgments, 177 

(B.) Specialties, 177 

(C.) No Privity, 178 

(D.) Inferred Contracts, 180 

(II.) When Action Will Lie, 180 

(A.) Breach of Contracts, 180 

(B.) Breach of Certain Quasi-Contracts, 180 

d. Pleading, 180 

(I.) The Declaration, 180 

(A.) Joinder of Parties, 180 

(B.) Joinder of Counts, 181 

(C.) General Essentials, 181 

(D.) Variance, 181 

(E.) Amendment, 183 

(F.) Necessary Specific Allegations, 184 

(1.) Promise. — Assignment, 184 

(2.) Consideration, 185 

(3.) Performance of Conditions, 186 

(4.) Breach, 187 

(5.) Damage, 187 
(II.) T/ie Pleas, 187 

(A.) T/ie General Issue, 187 

(1.) W/iai i/at/ Be Shown in General, 187 

(2.) Particular Matters Which May Be 
Shown, 188 

(a.) Payment, 188 

vol m 



ASSUMPSIT 167 

(b.) Accord and Satisfaction, 188 
(c.) Release, 188 
(d.) Former Recovery, 188 
(e.) Assignment, 188 
(f.) Rescission, 189 
(g.) Breach, 189 
(h.) Judgment, 189 
(i.) Illegality, 189 
(j.) Non-execution, 189 
(k.) Incapacity, 189 
(1.) 2<Yawd, 189 
(m.) iVo Consideration, 189 
(n.) Readiness To Perform, 189 
(o.) A r o 2We, 1S9 
(3 ) Ejffec* o/ Giving Notice of Special 

Matters, 190 
(4.) What Admitted by, 190 

(a.) Everything Not Traversed, 190 
(b.) Legal Sufficiency of Declara- 
tion, 190 
(e.) Character of Person Suing, 190 
(B.) Special Pleas, .190 
(III.) Demurrer, 190 
(IV.) Replication, 191 
e. Conflict of Laws, 192 
3. General Assumpsit, 192 

a. Definition, 192 

b. History, 192 

c. Scope, 193" 

(I.) W/ien Ach'ow Wi7Z AW Lte, 193 

(A.) Express Contract Unperformed, 193 
(B.) Judgments, 193 
(C.) Specialties, 194 
(D.) #e**, TWe, 194 
(E.) No Privity, 195 
(F.) ToH Without Benefit to Estate, 195 
(G.) Voluntary Services, 195 
(H.) Not for Breach of Certain Quasi-Con- 
tract, 196 
(II.) When Action Will Lie, 196 

(A.) Express Contract Performed Except To 
Pay Money, 196 

Vol. in 



163 ASSUMPSIT 

(B.) Inferred Contracts, 198 

(C.) Quasi-Contracts Generally, 198 

(1.) Money Laid Out at Bequest or in Do- 
ing What Another Is Legally 
Obliged To Do, 198 

(2.) Benefits Obtained by Fraud or Appro- 
priation, 198 

(3.) Benefits Obtained by Compulsion, 200 

(4.) Benefits Conferred in Reliance on Un- 
en forcible Contract, 201 

(5.) Benefits Conferred by Mistake of 
Fact, 202 

(III.) Classification, 202 

(A.) Indebitatus Assumpsit, 202 
(1.) Money Counts, 202 

(a.) Money Paid for Defendant's 
Use, 202 

(b.) Money Bad and Received by De- 
fendant to Plaintiff's Use, 202 
(c.) Money Lent and Advanced, 203 
(d.) Interest, 203 
(e.) Account Stated, 204 
(2.) Debt Founded On, 205 

(a.) Use and Occupation, 205 
(b.) Board and Lodging, 205 
(c.) Goods Sold and Delivered, 205 
(d.) Goods Bargained and Sold, 205 
(e.) Work, Labor, Services and Ma- 
terials, 205 

(B.) Quantum Meruit and Quantum Valebat, 20G 

(IV.) Pleading, 206 

(A.) The Declaration, 206 

(1.) Joinder of Counts, 206 

(2.) Joinder of Parties, 207 

(3.) General Allegations, 208 

(4.) Variance, 208 

(5.) Amendment, 209 

(6.) Bill of Particulars, 209 

(7.) Special Allegations, 210 

vol. in 



ASSUMPSIT 169 

(a.) Request by Defendant, 210 

(b.) Consideration, 210 

(c.) Promise, 210 

(d.) Bequest of Payment, 211 

(e.) Amount Claimed, 211 

(f.) Breach, 211 

(g.) Forms Peculiar to Various 
Counts, 211 

(B.) The.Pleas, 212 

(1.) The General Issue, 212 

(a.) What May Be Shown Under, in 
General, 212 

(b.) Particular Matters Which May 
Be Shown, 212 

(AA.) Payment, 212 
(BB.) Former Adjudication, 212 
(CC.) Action Premature, 212 
(DD.) Non-Joinder of Parties, 

212 
(EE.) Malperformance, 213 
(FP.) i<Y«ur/, 213 
(GG.) Statute of Frauds, 213 
(c.) Notice of Special Matters, 213 
(d.) What Admitted by, 213 

(AA.) General Assumpsit, 213 
(BB.) Character of Party Suing, 
213 

(e.) Amendment, 213 
(2.) SpecuzZ Pleas, 213 
(C.) Demurrer, 214 
(D.) Replication, 214 
(V.) VercKd and Judgment, 214 

II. UNDER CODE PROCEDURE, 215 

Vol. Ill 



170 



ASSUMPSIT 



I. UNDER COMMON LAW PROCEDURE. — A. Definition. — 
Assumpsit is a common law action of contract for the recovery of 
damages for the breach of any legal obligations, except such as are 
under seal or of record, whether created by agreement or by pure 
implication of law. 1 

B History and Scope.— Assumpsit is the most modern of all of 
the contract actions and has practically supplanted all the others. 2 



1. Bouv. Law Diet. 184; 1 Chit. 
PI. (16th Am. ed.), Ill; 1 Words & 
Phrases 587-588; Willis Contracts, 3-5. 
The action is founded upon con- 
tract, either express or implied. Boy- 
Ian v. Hot Springs E. Co., 132 U. S. 
146, 10 Sup. Ct. 50, 33 L. ed. 290; 
Lloyd v. Hough, 1 How. (TJ. S.) 153, 11 
L. ed. 83; Wicks v. Wheeler, 139 HI. 
App. 412. 

Not on Eecord. — Assumpsit will 
not lie on an obligation of a higher 
nature than simple contract, e. g., a 
covenant' or judgment, but will lie 
upon a new contract with a new con- 
sideration to satisfy an obligation evi- 
denced by a muniment of a higher na- 
ture, than mere simple contract. Mil- 
ler v. Watson, 7 Cow. (N. Y.) 39. 
And see Hilton v. Guyot, 159 U. S. 
113, 16 Sup. Ct. 139, 40 L. ed. 95; 
Tayloe v. Sandiford, 7 Wheat. (II. 
S.) 13, 5 L. ed. 384. 

In Dunn v. Auburn Electric Motor 
Co., 92 Me. 165, 42 Atl. 389, in the 
language of the court, "the plaintiff 
declared in assumpsit, alleging that 
the defendant agreed to manufacture 
and deliver to the plaintiff at his brick- 
yard in Auburn, properly set up and 
connected and in running order, one 
ten horse-electric motor, which motor 
the defendant warranted should be all 
right and satisfactory to the plaintiff; 
and also alleging a breach of this 
agreement. In support of this declar- 
ation, the plaintiff, against the objec- 
tion of the defendant, was permitted 
to introduce in evidence the contract 
of the defendant in writing and under 
its seal, by which the defendant cov- 
enanted to do the things which are set 
forth in the declaration. We think 
the admission of this document was 
erroneous. It has been decided many 
times that when one covenants or 
agrees under seal with another to pay 
a sum or to do an act, the other can- 
not maintain assumpsit upon the agree- 

voi. m 



ment. The action must be debt or cov- 
enant broken. But when there is in 
the sealed instrument no covenant or 
agreement to pay or perform to the 
obligee, or to some other person for 
his use, the instrument may be used 
as evidence in an action of assumpsit. 
Varney v. Bradford, 86 Maine, 510; 
Baldwin v. Emery, 89 Maine, 496, and 
cases cited. See also Carrier v. Dil- 
worth, 59 Pa. St. 406, cited by plaint- 
iff. In the instrument in question, the 
defendant agreeed under seal to do a 
certain act, namely to manufacture 
and deliver to the plaintiff an electric 
motor, properly set up and connected 
and in running order, and which it was 
warranted should be 'all right,' and it 
is for a breach of this agreement that 
the plaintiff seeks to recover here. 
Clearly it falls within the rule of 
covenants to do or perform acts. As- 
sumpsit will not lie upon such a sealed 
instrument, nor can it be used as evi- 
dence to support an action of assump- 
sit." 



In Pennsylvania, however, this rem- 
edy "is employed not only in cases 
where, at the common law, it would 
have been appropriate, but also in 
cases in which the action would for- 
merly have been in debt or covenant." 
Stewart v. Barnes, 153 U. S. 456, 14 
Sup. Ct. 849, 38 L. ed. 781. 

In Virginia it has superseded cove- 
nant (Grubb v. Burford, 98 Va. 553, 
37 S. E. 4) ; and in Maine it may be 
maintained on a sealed lease (Rum- 
ford Palis Boom Co. v. Rumford Falls 
Paper Co., 96 Me. 96, 51 Atl. 810). 

2. For the origin and nature of the 
action of assumpsit, see infra, "Spe- 
cial Assumpsit" and "General As- 
sumpsit," as each of these actions has 
had separate history. 

The remedy has always existed in 
Virginia. Lloyd v. Hough, 1 How. 
(U. S.) 153, 11 L. ed. 83. 



ASS U MI'S J T 



171 



Like all the contract actions it is a form of action for the redress of 
the violations of those acquired legal rights which exist because of 
special relations into which parties have entered. 3 It will not afford 
redress for the violations of those legal rights which every person 
possesses because he is a member of civilized society, and which are 
called natural legal rights. 4 

To understand completely the nature and precise scope of the ac- 
tion of assumpsit, as distinguished from other similar actions, and 
when it is allowable or desirable from among several remedies to 
choose the action of assumpsit, requires a knowledge and appreciation 
of the elemental ideas and distinguishing features of the various 
causes of action and the peculiarities or characteristic features of 
the action of assumpsit. The practical operation of the practitioner 
at this point is the selection, or election, of a remedy. 5 

In order to grasp the rationale of these various actions and their 
application, not only to situations clearly ex delicto and clearly ex 
contractu, but where the facts seem to mingle in such a way as to 
permit a theory of tort and a theory of contract, it is absolutely 
essential to grasp the elemental features which warrant or compel the 
classification which has been given by the courts to the causes of ac- 
tion. The practical lawyer does not need to be reminded that these 
causes of action are not changed or affected by legislative reforms. 8 

The crude category of remedies devised in the comparatively bar- 
barous periods of English law afforded no remedy for, or recognition 
of, a case, where, although no wrongful act is done, there exists what 
is now regarded as a culpable injurious omission. Nor did they 
recognize as injurious in the cognizance of the law (i. e., actionable), 
consequential harm or damage resulting collaterally where the ele- 
ment of direct force (trespass) was not present; or where the idea 
of force was inapplicable because the subject-matter was not corporeal, 
even though the act was followed by immediate but consequential 
harm. As civilization progressed society began to recognize the reality 
of consequential injury from affirmative acts and the reality of a 
direct injury from negligent action or non-action, and the necessity 
of some remedy for such wrongs. The judges, however, had no power 
to extend their jurisdiction beyond what they considered the legiti- 



This action is more accurately 
named trespass on the case upon prom- 
ises. Carrol v. Green, 92 U. S. 509, 
23 L. ed. 738. 

Lord Coke's account as given in 
Slade's Case, 10 Co. Rep. 130, is said 
by Lord Loughborough to be incor- 
rect. Ruddej v. Price, 1 H. Bl. (Eng.) 
550. 

3. Besides assumpsit the other com- 
mon law actions of contract are debt, 
detinue and covenant. See those ar- 
ticles. 



4. The proper actions for the re- 
dress of violations of natural rights. — 
such as life, liberty, reputation, fam- 
ily and property, — are the tort actions 
of trespass, trover, repnevin, case and 
ejectment. 

5. See the title "Choice and Elec- 
tion of Remedies." 

6. See Byxbie v. Wood, 24 N. Y. 

607. 

vol. in 



172 



ASSUMPSIT 



mate scope of the original writs framed to meet the cases in which 
the law afforded remedies. 

Among the old actions upon contract were the actions of covenant 
upon what were, of course, always express contracts under seal, and 
the action of debt, which was in the old time, with detinue, the only 
remedy on executory contracts not under seal. These were wholly 
inapplicable to a vast number of cases of actual contracts and to 
transactions where clearly the parties meant to have their acts fol- 
lowed by pajmient or restoration. Moreover, these actions were 
clogged by the defect that under the old system the defendant by 
waging his law practically defeated the application of a truly judicial 
remedy. 

It was under these circumstances that the celebrated statute, 13 
Edw. I, c. 24, commonly known as the Statute of Westminster the 
second, was passed, under which, by the combined action and ''con- 
sent of men learned in the law," the clerks of chancery and the courts, 
the elastic and beneficent action on the case and the modern offshoot 
of the same, namely, the action of assumpsit, were invented. 7 

As to- the action of trespass on the case, only a word is here permis- 
sible, that is, only sufficient to distinguish it in its present aspect, or 
in the features in which it impinges upon the law of contract, through 
the medium of actions involving contracts but sounding in tort, from 
the' action of assumpsit (ex contractu). 

In cases of simple contract, where the defendant had undertaken 
to do something for the plaintiff and by some wrongful affirmative 
act, i. e., malfeasance, had failed or defeated the purpose of the con- 
tract (as for example, where the defendant had undertaken to carry 
the plaintiff's horse across the river but had overloaded his boat with 
other horses, causing the plaintiff's horse to perish), an action was 
allowed on the theory of tort. 8 



7. 1 Spence, 240. 

8. Spenee's Eq. Jur. 241. Thus, as 
Mr. Reeves observes, the notion of a 
trespass or malfeasance was the prin- 
ciple upon which the application of 
this new remedy was explained and 
justified even in this instance, which 
seems to approach nearer to the na- 
ture of a contract. 

It was a principle of the Roman law 
that by natural law no one ought to 
enrich himself to the damage or from 
the property of another. Lindley's 
Thibaut, pp. 8, 23. See Byxbie V. 
Wood, 24 N. Y. 607. 

Where an action was provided for 
by express law, it was called actio 
directa; where it was allowed by the 
courts from the justice of the case, it 
was called action utilis; but neither 

vol. m 



extended beyong cases where the agen- 
cy of injury or the object damaged was 
corporeal. In time, therefore, as so- 
ciety became more refined, out of the 
justice of the case there grew up an 
action to remedy other wrongs, called 
action in factum, so named because 
the formula (i. e., the form of action) 
alleged all the facts. Poste's Gaius, 
p. 472; Lindley's Thibaut, 66, 67. 

This is precisely the reason for nam- 
ing the remedy action on the case 
Cooley's Bl. (4th ed.) 122; Shade's 
Case, 4 Co. '92b, 76 Eng. Reprint 1074. 
And see the title "Case." 

The analogy between this latter ac- 
tion and the action, on tne case is too 
obvious to admit of doubt as to its 
appreciation by the English legislators, 
judges and lawyers. No pure fiction 



ASSUMPSIT 



173 



Another form of injury under circumstances of contract was mis- 
feasance, i. e., doing improperly what one was bound to do. In this 
manner the action of trespass on the case in form ex delicto was ex- 
tended into the domain of simple executory contracts, and in this 
aspect it extends only to contracts which in some part must be ex- 
press. 9 

Assumpsit Proper — The extension of the remedy so as to allow an 
action for the mere non-performance of promises was not so easily 
worked out in theory and naturally lagged in point of time. The 
first case of this kind is in 2 Henry IV. It was an action against a 
carpenter, who was alleged to have agreed (quare cum., etc., assump- 
sisset, etc.) to build a house within a given time, which he had not 
done (mere failure to act). This and several like cases subsequently 
brought were dismissed on the ground that such an action was not 
sustainable, thus leaving without remedy simple contracts * not under 
seal. Afterwards, in the reign of Henry VII., it was held that an 
action on the case would lie as well for nonfeasance as for malfeasance, 
and this, as Spence says, is the origin of the modern action of as- 
sumpsit. 10 For some time the formula of statement retained the tort 
feature, but ultimately this was dropped and the action took on the 
form of mere contract and is now classed as an ex contractu action. 11 

Express Contract, Implied Contract, Quasi- Contract. — Nothing need be 
said as to express contracts, but the distinction between ac- 
tions on implied contracts, properly so-called, and actions quasi ex 
contractu is not without practical value. There are many acts and 
transactions between men where the natural, i. e., logical inference 
from the acts of the parties is that one party intends to compensate 
the other, although no agreement to that effect is made; 12 also many 
cases of voluntary enrichment of one at the expense of another under 
circumstances clearly implying, by the logical process of reasoning, 
the intention to compensate. There are also many other situations 
where the parties receiving, although shown by the most clear and 
uncontrovertible evidence not to intend to make payment, are held 
in the law obliged to pay. 13 Thus, Spence says, "This action (as- 



is resorted to in implied contracts 
proper. The resort to fiction in quasi 
contracts is in perfect imitation of 
the practice of the Roman jurists, is 
within the scope of the Statute of 
"Westminster (See 1 Spence Eq. Jur. 
240, et seq.), and is followed to this 
day. See Byxbie v. Wood, 24 N. Y 
607. 

9. See the titles "Choice and Elec- 
tion of Remedies;" "Case." 

10. 1 Spence 's Eq. Jur. 242. 243. 
See Slade's Case, 4 Co. 92b, 76 Eng. 
Reprint 1074; Rudder v. Price, 1 H. 
Bl. (Eng.) 550. 



11. See Miller v. Ambrose 35 App. 
Cas. (D. C.) 75. 

12. Where beneficial service is per- 
formed. 

13. The case of Byxbie v. Wood, 
24 N. Y. 607, illustrates many phases 
of this salutary resort to fiction. In 
substance it is 'this: Wood, in the sale 
of a vessel to Marvin, by fraud and 
false statements obtained a largely 

3ive price, and iu the same trans- 
action otherwise defrauded him out of 
' ' <■ sums of money. Byxbie, as as- 
signee, sued Wood. The complaint 
alleged that Wood made false and 

Vol. in 



174 



ASSUMPSIT 



sumpsit) has been extended, conscience encroaching on the common 
law in almost every case where an obligation arises from natural 
reasoning and the just construction of law, i. e., quasi ex contractu.' ni 
This action comprehends besides express contracts all implied and 
all presumptive undertakings, or assumpsits, which, though never per- 
haps actually made, yet constantly arise from this general intend- 
ment of courts of judicature, that every man is engaged to perform 
what his duty and -justice require. 15 

Assumpsit therefore is an equitable action based upon a cause of 
action founded on either an express simple contract or a contract 
implied from the facts of some transaction or presumed by the courts 
by a resort to fiction from the justice of the situation. 

These contracts are classified by the schoolmen, with more or less 
recognition in the courts, as express, implied and quasi-contracts, al- 
though the line of demarcation between the last two has never been 
very clearly marked out by the courts. 16 

C. Classification.—!. General Statement.— There are two forms 
of the action of assumpsit, special assumpsit and general assumpsit. 17 

When may the pleader adopt the form general assumpsit, and when 
may his declaration be special assumpsit ? This is answered, of course, 
by marking the distinction between general and special assumpsit. 

Stating this in the broadest terms, one may say that special as- 
sumpsit is always founded upon an actual contract and general assump- 



fraudulent representations and by 
means of such false representations 
iiaudulently and deceitfully obtained 
the property, etc., demanding judg- 
ment for the money. Gould, J., writes 
as follows: "The defendant himself 
received from Marvin large sums of 
money to which he was not entitled; 
and they have found that the plaint- 
iffs are entitled to recover, not for any 
fraud, but for the money which the de- 
fendant had so received, and which, 
being so received, he had no right to 
retain. This state of facts does not 
^necessarily require an action to be 
brought for the tort, even if it allows 
one to be so brought. Such facts 
always raise, in law, the implied prom- 
ise, whinh was the contract-cause of 
action in indebitatus assumpsit, for 
money had and received. Having 
lmnTi ev that rightfully belongs to an- 
other, creates a debt; and wherever a 
i!« i.t exists without any express prom- 
ise to pay, the law implies a promise; 
and the action always sounds in con- 
tract. Under the Code this implied 



promise is treated as a fiction, and 
the facts (out of which the prior law 
raised the promise) are lo be stated 
without any designation of a form of 
action; and the law gives such judg- 
ment as, being asked for, is appro- 
priate to the facts." . . . (The 
plaintiffs demanded judgment for the 
money, $6,559.62.) "What valid ob- 
jection is there to treating these words 
('fraudulently and by deceit') as mere 
inducement, containing a statement of 
the facts which show that Marvin's 
payment was not a voluntary one with 
knowledge of the facts!" 

14. Hawkes v. Saunders, Cowp. 289, 
294, 93 Eng. Reprint 1091. 

Promises in law only exist when 
there is no express stipulation between 
the parties, per Buller, J., in Toussaint 
v. Martinnant, 2 T. E. 100, 105, 100 
Eng. Reprint 55. 

15. See Spence Eq. Jur. 249. 

16. See Andrews' Am. Law (2d ed.) 
694, 695. 

17. Andrews' Steph. PI. 86. 



ASSUMPSIT 



175 



sit is never founded upon an actual contract. Tn other words, 
general assumpsit always involves implication, presumption or resort 
to fiction. When the object of the action is merely to recover money 
which has become due in respect to a past completed or executed con- 
sideration, arising at the express or implied request of the defendant, 
then the common counts will suffice. In such actions the object is 
always to recover that which belongs to, or has become due to, the 
plaintiff. 

By special assumpsit, in contradistinction to general assumpsit, is 
meant declaring specially, that is to say, by setting out all facts 
showing the intention of the parties, the nature of the transaction, 
the real consideration, the real promise, the performance by the plaint- 
iff of conditions, the defendant's non-performance, and the damages 
sustained by the plaintiff. The complaint or declaration in special 
assumpsit is always upon the theory that it sets forth actual facts, 
whereas in general assumpsit the promise is in all cases implied or 
presumed, and is alleged as a sequence from the facts alleged as in- 
ducement. 

2. Special Assumpsit.— a. Definition. - Special assumpsit, then, 
is an action for the recovery of damages for the breach of those legal 
obligations which are created by express agreement, either written 
or oral, direct or circumstantial. 18 

b. History. — Special assumpsit is an action on the case in the na- 
ture of deceit. The root of liability in special assumpsit, as in deceit, 
is detriment or damage. At first special assumpsit was regarded as 
a tort action, but it is now classed as a contract action. The action 
grew up out of the authority given by Parliament in 1285 to the 
clerks in chancery to issue writs in consimili casu with the existing 
writ, when no writ was found for a case similar in its facts to one 
for which a writ already existed. When the action became known 
as a contract action the detriment to the promisee became the con- 
sideration for the contract, which was then unilateral. Later special 
assumpsit was extended to the bilateral contract, when the promise to 
sustain a detriment became the consideration. 19 



18. Will's Gould PI. 48, Andrews' 
Steph. PI. 86. 

19. Young v. Taylor, 36 Mich. 25; 
Willis Contracts, 42; 2 Har. Law Rev. 
1; Holmes Com. Law, 247-288. 

The tortious character of the action 
of special assumpsit is shown by the 
fact that in the earliest actions where 
a breach of promise is alleged such 
statement is for the purpose of ex- 
cusing suing in an old action and the 
breach of promise is merely incidental, 
the gist of the action being the negli- 
gent injury to property. Street, Foun- 
dations of Legal Liability, 173. 



Case not assumpsit is the proper ac- 
tion for breach of contract if accom- 
panied by fraud, or breach of duty 
growing out of contract. Alabama G. 
S. R. Co. v. Norris (Ala.), 52 So. 891; 
Morgan v. Patrick & Smith, 7 Ala. 185; 
Bates v. Bates Mach. Co., 230 111. 619, 
82 N. E. 911. 

A declaration in assumpsit may not 
be amended to one in case for deceit. 
Flanders v. Cobb, 88 Me. 488, 34 Atl. 
277, 51 Am. St. Rep. 410. 

In special assumpsit the writ need 
not be in trespass on the case; 
it is sufficient if in case. Special at- 

vol. in 



176 



ASSUMPSIT 



sumpsit is an action on the case. Ala. 
Stovall v. labors, 1 Ala. 218. 111. 
Carter v. White, 32 111. 509. Miss.— 
Smith v. Warren, 2 How. 895. Ore. 
Baldro v. Tolmie, 1 Ore. 176. 

Case and assumpsit are often concur- 
rent remedies. See Mnford v. Bangor, 
E. & E. Co., 104 Me 233, 71 Atl. 759. 

Waiver of Tort. — As to the right to 
waive the tort and sne in assumpsit, 
see the titles "Case," and "Choice 
and Election of Remedies." 

Case and Assumpsit Compared.— 
Ala. — Wilkinson v. Moseley, 18 Ala. 
288; Mardi's Admrs. v. Shackleford, 4 
Ala. 493. Ark. — Ferrier v. Wood, 9 
Ark. 85. Me. — Hathorn v. Calef, 53 
Me. 471. S. C. — Sinclair's Exrs. v. 
Bank, 2 Strobh. 344. Vt. — Lawson v. 
Crane, 74 Atl. 641. 

A declaration in assumpsit for fraud- 
ulent representations is authorized by 
the statutes of Michigan. 3 Comp. 
Laws, §10421; Hokanson v. Oatman 
(Mich.), "131 N. W. Ill; Hallett v. 
Gordon, 128 Mich. 364, 87 N. W. 261. 

"The ancient remedy for a false 
warranty -was an action on the case 
sounding in tort. Stuart v. Wilkins, 1 
Doug. IS; Williamson v. Allison, 2 
East 447. The remedy by assumpsit is 
comparatively of modern introduction. 
In Williamson v. Allison, Lord Ellen- 
borough said it had 'not prevailed gen- 
erally above forty years.' In Stuart 
v. Wilkins, Lord Mansfield regarded 
it as a novelty, and hesitated to give 
it the sanction of his authority. It 
is now well settled, both in English 
and American jurisprudence, that eith- 
er mode of procedure may be adopted. 
Whether the declaration be in as- 
sumpsit or tort, it need not aver a 
scienter. And if the averment be made 
it need not be proved. Williamson v. 
Allison, 2 East, 466; Gresham v. Pos- 
tan, 2 Car. & P. 540; Brown v. Edg- 
ington, 2 Man. & G. 279; Holman v. 
Dord, 12 Barb. 336; House v. Fort, 4 
Blackf. 293; Trice v. Cochran, 8 Grat. 
449; Lassiter v. Ward,, 11 Ired. 443. 
One of the considerations which led to 
the practice of declaring in assump- 
sit was that the money counts might 
be added to the special counts upon 
the warranty. Williamson v. Allison, 
2 East, 441. If the declaration be in 
tort, counts for deceit may be adrled to 
the special counts, and a recovery 
may be had for the false warranty or 

Vol rn 



for the deceit, according to the proof. 
Either will sustain the action. Yail v. 
Strong, 10 Vt. 457; Brown v. Edging- 
ton, 2 Man. & G. 279." Schuchardt V. 
Allen, 1 Wall. (U. S.) 359, 371, 17 L. 
ed. 642, 645, per Swayne, J. See also 
Coopwood v. MeCandless (Miss.), 54 
So. 1007; and the title "Warranty." 
"The plaintiff declares, in substance, 
that he bargained with the defendant 
for the purchase of a diamond, and 
that the defendant sold him the dia- 
mond for a certain price by 'falsely 
and fraudulently warranting' it to be 
a perfect stone, when, in fact, it was 
not a perfect stone, but defective in 
certain respects stated, and that the 
defendant thereby 'falsely and fraud- 
ulently deceived him.' The service was 
by arrest, and the case stands on 
a motion to dismiss. The defendant 
argues that no scienter is alleged; that 
the declaration is in case for a breach 
of warranty; that there could be no 
recovery without proving the warranty; 
and that this conclusively determines 
that the action is founded on contract. 
No point is made distinguishing be- 
tween the counts. In 2 Chitty's 
Pleading, 279, there is a form for de- 
claring in assumpsit on a warranty, 
and at page 679 there is one for de- 
claring in tort on a warranty. The 
latter form is the one used here. The 
two forms were joined in one declar- 
ation in Dean v. Cass, 73 Vt. 314, 
50 Atl. 1085, and the second was held 
to be in tort and improperly joined 
with the first. So the declaration be- 
fore us may be classed, without spe- 
cial examination, as in form a declara- 
tion in tort. In pursuing the inquiry 
further it will be well to have in 
mind the nature of a warranty, and 
the history and characteristics of the 
remedies permitted for a breach of 
it. The ordinary warranty relates to 
the condition of the property at the 
time of the sale. Such a warranty, if 
broken at all, is broken when 
made. The breach consists in the 
fact that the property is not 
as it is stated to be. The war- 
ranty may be made merely as an as- 
sumption of a contract obligation, 
or it may be deceitfully made with a 
knowledge of its falsity. In either 
ease it is made to induce the pur- 
chase. Personal actions are either for 
breaches of contract or for wrongs 



ASSUMPSIT 



111 



C. Scope.— (I.) When Action Will Not Lie. — (A.) Judgments.— 
Special assumpsit will not lie on a judgment, or debt of record, 20 
whether of the same or a sister state, 21 or a judgment rendered by a 
justice of the peace of the same state. 22 Debt is the proper reuiedy. 

(B.) Specialties. -Special assumpsit will not lie for breach of a 
contract under seal, 23 nor on an award rendered pursuant to a sub- 
mission under seal, 24 nor on an oral modification of a contract under 



unconnected with contract; assumpsit 
being in the first class, and case in 
the second. Chitty, 97. The original 



in tort. If the declaration in tort 
requires the same and only the same 
proof as the one in assumpsit, it is 



action on the case, permitted in suits | manifestly a ^ declaration in tort only 
for which the established forms were 



not adapted, waa not similar to the 
present action of assumpsit, but re- 
sembled rather the present form of a 
declaration in case for a tort. Chitty, 
99. It was at first difficult to disting- 
uish assumpsit from case; and tne 
early decisions in actions on warran- 
ties were made before the boundary 
between the two remedies was well de- 
fined. Note to Chandelor v. Lopus, 1 
Smith Lead. Cas. 178. The practice 



in name. The declaration before us 
is so framed that nothing more is 
required. It disc-loses a warranty false 
in fact, but not false to the knowledge 
of the warrantor. If the plaintiff re- 
covers upon this declaration, it will 
be solely by force of the contract." 
(Jaldbeck v. Simanton, 82 Vt. 69, 71 
Atl. 881. 

20. Wass v. Bucknam, 40 Me. 289; 
Andrews v. Montgomery, 19" Johns. (N. 
Y.) 162, 10 Am. Dec. 213. 

21. Ark. — Morehead v. Grisham, 13 
Ark. 431. Ky. — Garland v. Tucker, 1 



of declaring in tort for warranty brok 
en originated in this early period; . 

and the remedy then adopted continued g bb Q f? L Me.-McKim v. Odom, 12 
in almost exclusive use until the mid- 
dle of the eighteenth century. . . . 
The difference between assumpsit and 
case as remedies for wrongs of this 
character was comparatively of little 
importance when our earliest cases up- 
on the subject were decided. The sub- 
sequent abolishment of imprisonment 
for debt has introduced an element 
which cannot be ignored in -reviewing 
the subject at this date. It is not 
necessary to consider further the con- 
struction, technicalities, and classifi- 
cation of the different forms employed, 
nor to anticipate the question of prac- 
tice that may arise in connection with 
their use. It is enough to say that 
if a plaintiff wishes to proceed by ar 
rest, he must allege a case that en- 
titles him to arrest. That right can- 
not be given by mere form or clas- 
sification. The test must be the nature 
of the action as determined by its sub- 
stance. It is said in Beeman ( Buck, 
3 Vt. 53, 21 Am. Dec. 571, tuat as- 
sumpsit is supported by proof of the 
sale, a warranty, and the breach of 
ft, and that nothing more is required 



Me. 94.' 

22. James V. Henry, 16 Johns. (N. 
Y.) 233, 8 Am. Dec. 313; Bain v. Hunt, 
10 N. C. 572. 

23. U. S. — Marine Ins. Co. V. Young, 
1 Cranch 332, 2 L. ed. 126. Ala.— 
Reed V. Scott, 30 Ala. 640; Sommer- 
ville v. Stephenson & Johnson, 3 Stew. 
271. Cal. — Baker v. Cornwall, 4 Cal. 
15. 111.— Deverill i>. Salisbury, 61 111. 
316. Ind.— Fletcher v. Piatt, 7 Blackf. 
522. Ky. — Rankin V. Darnell, 11 B. 
Mon. 30, 52 Am. Dec. 557. Me.— Dunn 
V. Auburn El. Motor Co., 92 Me. 165, 
42 Atl. 3S9; Pope v. Maehias, etc., Co., 
52 Me. 535. Mass. — Richards v. Kil- 
lam, 10 Mass. 239. Miss.— Pierce v. 
Lacy, 23 Miss. 193. Mo.— Brown v. 
Gauss, 10 Mo. 265. Pa.— Quigley v. 
He Haas, 98 Pa. 292. R. I.— Conroy t'. 
Equitable Ac. Co., 27- R. I. 467, 63 
Atl. 356; Crandall r. Johnson. 26 R. 
I 250, 58 Atl. 765. Vt.— McKay v. 
Darling, 65 Vt. 639, 27 Atl. 324. 

24. Knight v. Trim. 89 Me. 469, 36 
Atl. 912; Admrs. of Tullis v. Sewell, 
3 Ohio 510; Tait V. Atkinson, 3 U. C. 
Q. B. 152. 

Vol. LTI 



178 



ASSUMPSIT 



seal when the modification is according to the provisions thereof, 25 
or when the modification is without consideration. 26 Covenant, or 
debt, is the proper remedy. 

But special assumpsit will lie for breach of a contract where the 
seal is inoperative, 27 or on a parol authority which is executed by an 
instrument under seal, 28 or on an instrument acknowledged before a 
foreign notary, 29 or on an oral modification of the specialty, or on a 
substituted contract; 30 or against a lessee accepting a lease under 
seal 31 or against a vendee of a contract to sell land when the statute 
does not require the vendee's signature, 32 or, on a contract where the 
seal is affixed by an agent without authority, 33 or when statutes have 
modified the common law by permitting the action of assumpsit to be 
brought where assumpsit, debt or covenant would lie at the common 
law. 34 

(U ) No Privity. — The general common law rule is that a third 
person who is not a party to a contract cannot sue in special assumpsit 
for breach of the same. 35 Some courts are strict in the application 
of this rule. 36 Most courts permit the third person to sue either if 
the promise is for his benefit and the promisee is at the time indebted 
to the third person, 37 or if assets are placed in the possession of the 



25. Hamilton v. Hart, 109 Pa. 629. 

26. Miller v. Watson, 7 Cow. (N. 
Y.) '39; Harley v. Parry, 18 Pa. 44. 

What Is a Seal. — Williams Use, etc., 
V. Young, 3 Ala. 145. 

Objection Waived. — Harris v. Morse, 
49 Me. 432, 77 Am. Dec. 269. 

27. U. S. — LeEoy v. Beard, 8 How. 
451, 12 L. ed. 1151. N. M— Excelsior 
Mfg. Co. v. Wheelock, 6 N. M. 410, 28 
Pac^ 772. N. C. — Kent v. Edmonston, 
49 N. C. 529. K. I. — Providence Tel. 
Pub. Co. v. Crahan En. Co., 24 E. I. 
175, 52 Atl. 804. 

28. Jones V. Horner, 60 Pa. 214. 

29. Hitchcock v. Cloutier, 7 Vt. 22. 

30. Ala.— McVoy v. Wheeler, 6 
Port. 201. Me.— Baldwin v. Emery, 
89 Me. 496, 36 Atl. 994. Md.— Mutual 
Fire Ins. Co. v. Deale, 18 Md. 26, 79 
Am. Dec. 673. Mass.— The Propri- 
etors V. Hovey, 21 Pick. 417. Pa- 
Carrier v. Dilworth, 59 Pa. 406. Va. 
Baird v. Blaigrove, 1 Wash. 170. 

31. Compton v. Jones. 4 Cow. (N. 
Y.) 13; First Cong. M. H. Soe. v. 
Eochester, 66 Vt. 501, 29 Atl. 810. 

32. Swisshelm v. The Swissvale 
Laund. Co., 95 Pa. 367. 

33. Bank of Metropolis v. Guttsch- 
lick, 14 Pet. (U. S.) 19, 10 L. ed. 335; 
Horner v. Beasley, 105 Md. 193, 65 
Atl. 820. 

VoL HI 



34. 111. — City of Shawneetown v. 
Baker, 85 111. 563; Protection Life Ins. 
Co. v. Palmer, 81 111. 88; Willenborg v. 
Illinois Cent. E. Co., 11 111. App. 298. 
Mich.— Christy v. Farlin, 49 Mich. 319, 
13 N. W. 607. Pa,— Corry v. Pennsyl- 
vania E. Co., 194 Pa. 516, 45 Atl. 341. 
W. Va.— State v. Harmon, 15 W. Va. 
115. 

35. U. S. — National Bank v. Grand 
Lodge, 98 U. S. 123, 25 L. ed. 75, where 
Mr. Justice Strong pointed out that 
"the decisions are not all reconcila- 
ble." Ala. — Blackshear v. Burke, 74 
Ala. 239. Ark. — Cummins v. James, 
4 Ark. 616. Ind. — Farlow v. Kemp, 7 
Blackf. 544. Mich. — Eandall v. Hig- 
bee, 37 Mich. 40; Pipp v. Eeynolds, 20 
Mich. 88. N. Y.— Simson v. Brown, 68 
N. Y. 355; Garnsey v. Eogers, 47 N. 
Y. 233, 7 Am. Eep. 440. Vt.— Miller 
v. Wilbur, 76 Vt. 73, 56 Atl. 280; War- 
den v. Burnham, 8 Vt. 390. Va. — Eoss 
v. Milne, 12 Leigh 204. 

36. Morrill v. Lane, 136 Mass. 93; 
Prive v. Easton, 4 Barn. & Ad. 433, 
24 E. C. L. 96, 110 Eng. Eeprint 518; 
Tweddle v. Atkinson, 1 B. & S. 393, 
101 E. C. L. 393, discrediting Dutton 
v. Poole, 2 Lev. 210, 83 Eng. Eeprint 
523. • 

37. TJ. S.— Hendrick v. Lindsay, 93 
U. S. 143, 23 L. ed. 855. Ala,— Huck- 



ASSUMPSIT 



179 



promisor by the promisee for the benefit of the third person; 38 and 
a few courts permit the third person also to sue if the contract is 
merely made for his sole benefit and not primarily for the benefit 
of the original debtor. 39 



abee v. May, 14 Ala. 263. Cal.— Mor- 
gan v. The Overman S. M. Co., 37 Cal. 
534. Colo. — Green v. Morrison, 5 Colo. 
18; Lehow v. Simonton, 3 Colo. 346. 
Conn. — Steene v. Aylesworth, 18 Conn. 
244; Treat v. Stanton, 14 Conn. 445. 
111. — Snell u.Ives, 85 111. 279; Beasley v. 
Webster, 64 111. 458; Eddy v. Roberts, 
17 111. 505. Ind.— Davis V. Galloway, 
30 Ind. 112, 95 Am. Dec. 671. la — 
Johnson v. Knapp, 36 Iowa 616, code. 
Kan. — Anthony v. Herman, 14 Kan. 
494, code. Me. — Bohanan V. Pope, 42 
Me. 93. Mass. — Arnold v. Lyman, 17 
Mass. 400, 9 Am. Dec 154; Sullivan v. 
Holker, 15 Mass. 374; Brewer v. Dwyer, 
7 Cush. 337. Minn. — Kramer v. Gard- 
ner, 104 Minn. 370, 116 N. W. 925; 
Jefferson v. Asch, 53 Minn. 446, 55 N. 
W. 604, 39 Am. St. Rep. 618, 25 L. R. 
A. 257; Stariha v. Greenwood, 28 
Minn. 521, 11 N. W. 76 (code). Mo- 
Fitzgerald v. Barker, 70 Mo. 685; Rog- 
ers v. Gosnell, 58 Mo. 589. N. J.— 
Joslin v. N. J. Car. Spr. Co., 36 N. J. 
L. 141. N. Y.— Lawrence v. Fox, 20 
N. Y. 268; Blunt v. Boyd, 3 Barb. 209. 
Ohio. — Thompson v. Thompson, 4 Ohio 
St. 333. Pa.— DeHaven v. Bartholo- 
mew, 57 Pa. 126. R. I.— Urquhart v. 
Brayton, 12 R. I. 169. Wis.— Kollock 
v. Parcher, 5"2 Wis. 393, 9 N. W. 67; 
Bassett v. Hughes, 43 Wis. 319; Put- 
ney v. Farnham, 27 Wis. 187, 9 Am. 
Rep. 459. 

"The general principle, that if one 
person contracts for the benefit of a 
third person, such third person may 
maintain an action on the agreement, 
has been applied since early in the 
seventeenth century in a large number 
of cases, the facts in each differing 
to sonte extent. The leading case in 
England is Dutton v. Poole (1 Ven- 
tris, 318, 332), decided in the reign 
of Charles II. The plaintiff declared 
in assumpsit that his wife's father 
being seized of certain lands now de- 
scended to the defendant and being 
about to cut a thousand pounds' worth 
of timber to raise a portion for his 
daughter, the defendant promised to 
the father in consideration that he 
would forbear to fell the timber, that 



he would pay the daughter one thou- 
sand pounds. After verdict for the 
plaintiff on non-assumpsit, it was 
moved in arrest of judgment that the 
father ought to have brought the ac- 
tion and not the husband and wife. 
The court said: 'It might have been an- 
other case if the money had been to 
have been paid to a stranger; but there 
is such a nearness of relation between 
the father and the child, 'tis a kind 
of debt to the child to be provided for, 
that the plaintiff is plainly concerned.' 
The judgment was affirmed in the Ex- 
chequer (2 Lev. 212; Raym. 302). 
Some criticism having been expressed 
as to the soundness of this decision. 
Lord Mansfield said of it a hundred 
years later, that it would be difficult 
to conceive how a doubt could have 
been entertained about the case. 
(Martyn v. Hind, Cowp. 443; Doug. 
142.) The case has been repeatedly 
followed in this state. The principle 
established by this case has been ap- 
plied to contracts entered into by a 
father for the benefit of his daughter 
and by a husband for the benefit of 
his wife. As to the latter instance, 
see Buchanan v. Tilden (158 N. V. 
109). In the case before us we have 
a municipality entering into a con- 
tract for the benefit of its inhabitants, 
the object being to supply them with 
pure and wholesome water at reason- 
able rates. While there is not pre- 
sented a domestic relation like that 
of father and child or husband and 
wife, yet it cannot be said that this 
contract was made for the benefit of 
a stranger." Pond i\ New Rochelle 
Water Co., 183 N. Y. 330, 337, 76 N. 
E. 211. 

38. Ky. — Allen V. Thomas, 3 Mete. 
198, 77 Am. Dec. 169. N. H.— Wiggin 
V. Wiggin, 43 N. H. 561, 80 Am. Dec. 
192. N. Y. — Weston _v. Barker, 12 
Johns. 276, 7 Am. Dec. 319. Vt.— 
Crampton v. Ballard's Adrnr., 10 Vt. 
251. 

39. Second Nat. Bank v. Grand 
Lodge, 98 V. S. 123, 25 L. ed. 75; Hen- 
drick v. Lindsay, 93 U. S. 143, 23 L. 
ed. 855; Austin v. Seligman, 21 Blatchf. 

vol m 



180 



ASSUMPSIT 



(D.) Inferred Contracts. — General assumpsit and not special as- 
sumpsit is the proper action for breach of an inferred contract, i. e., 
a contract implied of fact. 40 

(II.) When Action Will Lie.— (A.) Breach of Contracts. — Special 
assumpsit will lie for the breach of all express contracts or contracts 
all of whose terms are assented to in speech or writing, whether the 
same are proved by direct or circumstantial evidence. 41 

(B.) Breach of Certain 'Quasi-contracts. —Special assumpsit will 
not ordinarily lie for breach of obligations created by law, but where 
the obligations partake of the nature of assumpsit rather than debt, 
that is, are other than to pay money, special assumpsit will lie. Obli- 
gations of this nature are found in certain statutory and customary 
obligations. 42 

d. Pleading. — (I.) The Declaration. —(A.) Joinder of Parties.— 
Joint promisees must sue jointly or it is ground for non-suit or plea 
in abatement, and joint promisors are necessary parties and must be 
sued jointly. 43 In an action against joint promisors judgment must 



(U. S.) 506, 18 Fed. 519; Williston's 
Wald's Pollock Contracts, 242-244. 

40. 2 Street, Foundations of Legal 
Liability, 202. But see McKelvey Com. 
Law PL 23. 

41. Dermott V. Jones, 2 Wall. (U. 
S.) 1, 17 L. ed. 762. 

As' to when indebitatus assumpsit 
will also lie, see infra, I, C, 2, c, (I), 
(A); also (II), (A). 

42. U. S — Carrol v. Green, 92 U. 
S. 509, 23 L. ed. 738. Ky— Elliott v. 
Gibson, 10 B. Mon. 438; Ellis v. Hen- 
rv's Admr., 5 J. J. Marsh. 247. Me.— 
School Dist. No. 2 v. Tebbetts, 67 Me. 
239; Farwell v. City of Rockland, 62 
Me. 296; Sanford v. Haskell. 50 Me. 
86; Stimpson v. Sprague, 6 Me. 470; 
Stimpson v. Gilchrist, 1 Me. 202. Md. 
Appeal Tax Court v. Paterson, 50 
Md. 354; Dashriel v. Mayor of Balti- 
more, 45 Md. 615. Mass. — Central Br. 
Corp. v. Abbott, 4 Cush. 473; Dickin- 
son v. Winchester, 4 Cush. 114, 50 Am. 
Dec. 760; Parker v. Dennie, 6 Pick. 
227. N. H. — Hillsborough Countv v. 
Londonderry, 43 N. H. 451. N. Y.— 
Arnold v. Suffolk Bank, 27 Barb. 424. 
Vt.— Wheeler v. Wilson, 57 Vt. 157; 
Pawlett v. Sandgate, 19 Vt. 621. But 
see: Mass.— M'Millan v. Eastman, 4 
Mass. 378. Vt.— Town of Charleston 
v. Stacv. 10 Vt. 562. Eng. — Couch v. 
Steel, 3 El. & Bl. 402, 77 E. C. L. 402; 
Jones v. Bright, 5 Bing. 533, 15 E. C. 
L. 529; Schlencker v. Moxsy, 3 Barn. 
& C. 789. 10 E. C. L. 227, 107 Eng. 
Keprint 926; Morgan v. Bavey, 6 H. & 

Vol, III 



N. 265, 30 L. J. Ex. 131, 3 L. T. 784; 
Austin v. Great Western R. Co., L. E. 
2 Q. B. 442; George v. Skivington, 5 
Exch. 1. 

43. Mich.— Halliett v. Gordon, 122 
Mich. 567, 81 N. W. 556. N. Y.— 
Robertson v. Smith, 18 Johns. 459, 9 
Am. Dec. 227; Doe v. Halsey, 16 Johns. 
34, 8 Am. Dec. 293. W. Va.— San- 
dusky v. West Fork O. & N. G. Co., 
63 W. Va. 260, 59 S. E. 1082. 

A joint action cannot be maintained 
on a promissory note signed and sealed 
by one of the makers and only signed 
by the other two. Biery v. Haines, 5 
Whart. (Pa.) 563. 

Special assumpsit will lie against a 
corporation on a note made by its au- 
thorized agent. Proctor v. Webber, 1 
D. Chip. (Vt.) 371. 

In an action by two for breach of 

warranty, if there is a failure to prove 

that they are jointly interested, the 

name of the one not interested may 

| be struck out. Winsor v. Lombard, 18 

j Pick. (Mass.) 57. 

In an action on a joint contract, if 
I some of the defendants are out of the 
' state with no place in the state for 
I the service of summons, the writ may 
be served on those within the state and 
1 proceedings had against them. Tap- 
i pan v. Bruen, 5 Mass. 193. 

In Harwood v. Roberts, 5 Me. 441, 

< an action was brought against two of 

four joint and several promisors, but 

j the court held that the plaintiff must 

sue one or all, or show that the others 



ASSUMPSIT 



181 



be taken against all or none, unless some of the defendants make a 
personal defense, as infancy, when a nolle prosequi should be entered 
as to them and judgment rendered as to the others. 44 

(B.) Joinder of Counts. —The plaintiff may insert in his declaration as 
many counts as he pleases, whether he has one or several causes of 
action, but each count should disclose on its face a distinct right of 
action unconnected with that stated in any of the other counts. 4i 

(C.) General Essentials. - In order to show a good cause of action 
in special assumpsit, the declaration should contain a statement of 
the plaintiff's right and the violation thereof by the defendant.*" 
If any fact which is of the gist of the action is not averred, the declar- 
ation is not cured by verdict. 47 

(D.) Variance. — The proof must conform to the contract as laid; 
otherwise there is a variance. 48 A variance is a substantial departure 
from the issue, in the evidence adduced, if the same is in some matter 



are dead or incapable of being sued. 
Copartners making a special con- 
tract to do work must join as plaintiffs: 
Fish V. Gates, 133 Mass. 411. 

44. 111. — Gribbin v. Thompson, 28 
111. 61; Fuller v. Kobb, 26 111. 246; Rus- 
sell v. Hogan, 2 111. 552. Me.— Cutts v. 
Gordon, 13 Me. 474, 29 Am. Dec. 520. 
Mass. — Woodward v. Newhall, 1 Pick. 
500. N. Y. — Hartness v. Thompson, 5 
Johns. 160. Pa— Ridgely v. Dobson, 
3 Watts & S. 118. 

In an action against two, if one de- 
faults he is not a competent witness for 
the other. Pillsbury v. Kelson, 2 N. 
H. 283. 

45. Will's Gould PI. 352. 

A count upon a promise by two 
may be joined with a counf upon a 
promise by two and a third deceased. 
Wheeler v. Thorn, 2 N. H. 397. 

A declaration containing a number 
of counts, each containing sufficient 
allegations to support it either in tort 
or assumpsit, is good on demurrer, for 
it is not a joinder of tort and contract 
actions. Church V. Mumford, 11 Johns. 
(N. Y.) 479. 

46. Will's Gould PI. 355. 

A declaration sets forth a good cause 
of action which alleges that defendants 
on a certain day in a certain county 
made their promissory note in writing, 
that they thereby promised to pay 
plaintiff on demand with interest un- 
til paid $458; that they then and there 
delivered their note to plaintiff and 
promised the plaintiff to pay the same 



according to the tenor and effect 
thereof; that plaintiff afterwards and 
on a certain day in said county duiy 
demanded payment of the defendant 
according to the tenor and effect of 
said note, but the defendant did not 
pay the same. Beardsley v. South- 
mayd, 14 N. J. L. 534. 

A declaration against a carrier for 
failure to deliver goods is good, if it 
es a promise, consideration, per- 
formance of condition precedent of 
notice, and breach. Chesapeake & 0. 
R. Co. v Stock & Sons, 104 Va. 97, 51 
S. E. 161. 

A declaration is sufficient if it avers 
a promise or undertaking, though with- 
out the word "promise," a legal con- 
sideration, breach and injury. Union 
Stopper Co. v. McGara, 66 W. Va. 403, 
66 S. E. 69S. 

47. Chichester v. Vass, 1 Call (Va.) 
83, 1 Am. Dec. 509. 

48. Ala. — Findlay v. Stevenson. 3 
stew. is. Conn. — Chittenden r. Stev. 
enson, 26 Conn. 442; Bunnel v. Taint- 
or's Admr., 5 Conn. 27^; Bulkley v. 
Landon, 2 Conn. 404. 111. — Manifee v. 
Higgins, 57 111. 50; Reading v. Lin- 
nington, 12 111. App. 491. Ind. — Bart- 
lett V. Pittsburgh. C. & St. L. R. Co., 
04 Ind. 281; Cranmer V. Graham, 1 
Blackf. 406. Ky. — Bannister v. Weath- 
ersford, 7 B. Mon. 271; Brown v. War- 
ner, 2 J. J. Marsh. 37. Me. — Kidder v. 
Flacrg, 28 Ale. 477. Md— Walsh v. 
Gilmer, 3 liar. & J. 383. Va.— Harris 
V. Harris, 2 Rand. 431. 

vol. m 



182 



ASSUMPSIT 



which in point of law is essential to the charge or claim. 49 In case of 
a variance there is no right to recover, 50 or if recovery is allowed it 
is ground for a new trial, 51 unless the same is waived. 52 



49. Keiser V. Topping,- 72 111. 226. 

If the declaration alleges "run down 
boat in the Thames near the half way" 
and the proof is "run down . boat in 
the half way in Thames," there is no 
variance. Drewry v. Twiss, 4 T. E. 
558, 100 Eng. Eeprint 1174. 

The declaration alleges that plaint- 
iff promised to put premises in re- 
pair and defendant promised to keep 
them in repair. The proof is that 
plaintiff promised to keep the premises 
insured and to rebuild in case of fire. 
This is a variance. Beech v. White, 
12 Ad. & El. 668, 40 E. C. L. 156. 

A special count alleges a promise to 
deliver soil or breeze. The proof is a 
promise to deliver soil. This is a 
variance. Cooke v. Munstone, 4 Bos. 
& P. X. B. (Eng.) 351. 

In Beene v. Cahawba & M. E. Co., 
3 Ala. 660, suit was instituted in a 
mistaken name, but the right name 
was carried into the declaration with 
an 'averment that defendant was served 
with process issued in a mistaken name. 
The court held that the variance be- 
tween the writ and the declaration could 
be pleaded in abatement and that the 
defect was not cured by the declara- 
tion. 

When the declaration alleges a con- 
tract to have been made in Feb. 20, 
1S68, to repair a still within six 
months and the proofs show that the 
contract was made on the first of 
March to complete the still in thirty 
days, there is no substantial variance, 
as time is not of the essence of the 
contract. Frazer v. Smith, 60 111. 145. 

In a declaration a note is described 
as bearing date April 6, 1864, when the 
one produced in evidence bears date 
September 6, 1864. Such variance is 
fatal. But if the execution of the 
note is proved, the note is then ad- 
missible in evidence 'under the com- 
mon counts, and the variance cannot be 
raised. Streeter v. Streeter, 43 111. 
155. 

It is a variance to allege "defendant 
to deliver to plaintiff pork of nineteen 
hogs" and prove "all the pork he could 
spare." Mastin v. Tonaray, 3 111. 216. 
There is no variance when letters 
containing a contract bear a date dif- 

VoL in 



fering from that named in the declar- 
ation. Trench v. Hardin County Can. 
Co., 67 111. App. 269. 

A declaration alleges a lease (as 
consideration for the promise) one 
year from April 1, to continue from 
year to year. The proof is a written 
lease bearing date February 28 for 
one vear. This is a variance. Keyes v. 
Dearborn, 12 N. H. 52. 

If the plaintiff declares on a written 
instrument as bearing a particular 
date, a mistake in date is fatal. Not 
so, if he declares on a contract with- 
out reference to the instrument. Drown 
v. Smith, 3 N. H. 299. 

There is a variance when the declar- 
ation alleges a breach of promise to 
pay for half of land on a certain day, 
when the contract is to pay for all. 
Crawford v. Morrell, 8 Johns. (N. Y.) 
253. 

If the promise declared on is abso- 
lute, and the one proved is conditional, 
it is a variance. Starnes v. Erwin, 32 
N. C. 226. 

So, the consideration must be sub- 
stantially proved as laid, or there is 
a variance. If the consideration al- 
leged is to build a ship while the evi- 
dence is that the consideration is to 
finish a ship partly built, there is a 
variance. U. S. — Smith v. Barker, 22 
Fed. Cas. No. 13,013. Ala.— Jardan v. 
Eoney, 23 Ala. 758. Ky.— Carrell v. 
Collins, 2 Bibb 429. N. H.— New 
Hampshire Mut. Fire Ins. Co. v. Hunt, 
30 N. H. 219; Knox t>. Martin, 8 N. H. 
154. 

50. Del. — Porter v. Beltzhoover, 2 
Harr. 484. 111. — Heidelmeier r. Hecht, 
145 111. App. 116. Ind. — Armacost v. 
Lindley, 116 Ind. 295, 19 N. E. 138. 
Miss. — Fowler v. Austin, 1 How. 156, 
26 Am. Dec. 701. Neb. — Knickerbock- 
er, etc. Co. v. Hall, 3 Nev. 194. Term. 
Wilson r. Smith, 5 Yerg. 379. Tex. 
Orvnski r. Menger, 15 Tex. Civ. App. 
448, 39 S. W. 388. Eng.— Beech v. 
White, 12 Ad. & El. 668, 40 E. C. L. 
156. 

51. Baltimore & O. E. Co. r. Eath- 
bone, 1 W. Va. 87, 88 Am. Dec. 664. 

52. Muldoon v. Meriwether, 25 Ky. 
L. Eep. 20S5, 79 S. W. 1183. 



ASS IMTS IT 



183 



(E.) Amendment. —A plaintiff may apply for an amendment to his 
declaration at any time before judgment, so long as the amendment 
will not change the nature or cause of the action. 03 



53. Ind.— Sanders V. Hartge, 17 Ind. 
App. 243, 40 N. E. 004. Me.— Flanders 
v. Cobb, 88 Me. 488, 34 Atl. 277, 51 
Am. St. Eep. 410. N. H.— Brown v. 
Leavitt, 52 N. H. 619, overruling Stev- 
enson v. Mudgett, 10 N. H. 338, 34 Am. 
Dec. 155. 

The form of action cannot be 
changed by amendment from assump- 
sit to debt. Knight V. Trim, 89 Me. 
469, 36 Atl. 912. 

A declaration against two or more 
cannot be amended by striking out 
the name of one. Eedington v. Farrar, 
5 Me. 379. 

A declaration may be amended after 
verdict by altering the day on which 
the promise was made. Bailey v. Mus- 
grave, 2 Serg. & R. (Pa.) 219. 

Where the declaration has been ma- 
terially amended defendant has the 
right to file additional pleas, and to 
refuse it is error. Johnson v. Glover, 
19 111. App. 585. 

Statutes sometimes permit a declar- 
ation to be amended so as to change 
the form of action from covenant to 
assumpsit, or assumpsit to covenant. 
Monahan v. Fidelity Mut. Life Ins. 
Co., 242 111. 488, 90 N. E. 213, 134 Am. 
St. Eep. 337; Stebbins v. The Lanca- 
shire Ins. Co., 59 N H. 143, overruling 
Brown v. Leavitt, 52 N. II. 619. 

New Hampshire Practice. — "Under 
the liberal practice in vogue in this 
state since the decision in Stebbins v. 
Insurance Co., 59 N. H. 143", if not 
from an earlier date, it has been cus- 
tomary for the court, if justice would 
be promoted, to allow amendments in 
legal proceedings, either of form or 
substance, provided that in so doing the 
rights of third parties would not be 
interfered with and the case could be 
rightly understood by the court. P. S. 
1901, c. 222, §§ 7, 8. The underlying 
principle seems to be that a litigant 
should be accorded such remedies and 
methods of stating his grievance as 
may be necessary 'to meet the meri- 
torious contingencies of his case.' 
Brooks v. Howison, 63 N. H. 382, 389. 
He has been permitted by amendment 
to change an action of traspass to 
land into a bill in equity for specific 



performance of an agreement to con- 
vey the land (Uncanoonuck Road Co. 
V. Orr, 07 N. li. 541, 41 Atl. 665); an 
action of debt for rent into assumpsit 
for use and occupation (Meredith, 
etc., Ass'n. v. Drill Co., 66 N. 1L. 539, 
30 Atl. 1119) j trespass to land to as- 
sumpsit for use and occupation (Elsher 
V. Hughes, 00 N. H. 469; and assump- 
sit to case for flowing land (Morse v. 
Whitcher, 64 N. 11. 591, 15 Atl. 207). 
These decisions are sufficient to illus- 
trate the principle, and to demonstrate 
that the trial justice was acting in 
accordance with the established prac- 
tice in permitting the plaintiff to 
amend his declaration by substituting 
a count in case. The plaintiff couid 
have inserted in the original draft of 
his writ counts in assumpsit and case. 
Broadhurst v. Morgan, 66 N, II. 480, 
29 Atl. 553. What could have been 
done originally may be accomplished 
by amendment, if justice will be pro- 
moted thereby. It would seem that 
prudence would have dictated the in- 
sert inn of both counts in the original 
draft to meet the meritorious contin- 
gencies of the plaintiff's case. What 
he is seeking to recover is compensa- 
tion for the injury he received while in- 
itio defendant's employment. If the de- 
fendant's agent had authority to make 
the contract of settlement, the plain- 
tiff would obtain his compensation in 
the count in assumpsit. If the agent 
was without authority to make the 
contract, then he would obtain it in 
the count in case. The subject-matter 
involved in the two counts is the same, 
although the issues raised are differ- 
ent. Meredith, etc., Ass'n. v. Drill Co., 
67 N. II. 450, 39 Atl. 330. By declar- 
ing in assumpsit the plaintiff miscon- 
ceived his remedy, as facts essential 
to the maintenance of his supposed 
right did not exist. Noyes v. Edgerly, 
71 N. H. 500, 504, 505~, 53 Atl. 311. 
But by misconceiving his remedy he 
did not preclude himself from assert- 
ing his actual rights in a new action, 
or by amendment. Gould t'. Blod^.-tt, 
61 N. II. 115. In Gould v. Blodgett 
the action was assumpsit for the price 
of a horse rake, which the plaintiff 

VoL m 



184 



ASSUMPSIT 



(F.) Necessary Specific Allegations. — (1.) Promise. — Assignment. — 
In special assumpsit the promise is of the gist of the action and must 
be alleged. An express promise should be laid; a recital is not 
enough. 54 A promise need not be again alleged if the suit is on an 
instrument and the instrument contains a promise. 55 The promise 



understood his agent had sold to the 
defendant. At the trial before the 
referee, it turned out that the agent 
did not sell the rake as he was auth- 
orized, but delivered it to the defend- 
ant in payment of his own pre-existing 
debt. Upon filing the report, the trial 
court allowed the plaintiff to amend 
his declaration by filing a count in 
trover, and it was held that the amend- 
ment was properly allowed. This case 
cannot be distinguished from the pres- 
ent one. As the amended count relates 
to the same subject-matter as the or- 
iginal count, and the case can be right- 
ly understood by the court, and as it 
does not appear that the rights of 
third parties will be interfered with 
by the allowance of the amendment, 
while the plaintiff would be put to 
unnecessary expense if required to 
bring a new action, the trial court 
was warranted in finding that justice 
required that the plaintiff's motion 
should be granted." Sanborn v. Bos- 
ton & M. E. E. (N. H-), 79 Atl. 642. 

54. Ala. — Hill 's Admr. v. Nichols, 
50 Ala. 336. 111.— Keyes v. Binkert, 
48 111. App. 259. S. C— Wingo v. 
Brown, 12 Eich. 279. Va.— Southern 
E. Co. v. Wilcox, 98 Va. 222, 35 S. E. 
355; Cooke v. Simms, 2 Call 39; Win- 
ston's Exr. v. Francisco, 2 Wash. 187. 
W. Va.— Wheeling M. & F. Co. v. 
Wheeling S. & I. Co., 62 W. Va. 288, 
57 S. E. 826. 

Subsequent Promise. — The allegation 
of a promise subsequent to the declar- 
ation is bad. Waring V. Yates, 10 
Johns. (N. Y.) 119. 

Equivalent Word.— It is not neces- 
sary to use the word "promised;" an 
equivalent word is sufficient. U. S. — 
Cummings v. Synnott,, 120 Fed. '84, 56 
C C. A. 490. Pa.— Eeilly v. Crown 
Petroleum Co., 213 Pa. 595, 63 Atl. 
253. W. Va.— Union Stopper Co. v. 
McGara, 66 W. Va. 403, 66 S. E. 698; 
Wheeling Mold & F. Co. v. Wheeling 
Steel & I. Co., 62 W. Va. 288, 57 S. E. 
826. 

An inference of law from the con- 
tract set out in the declaration is not 
VoL III 



enough. Coffin v. Hall, 106 Me. 126, 
75 Atl. 385. 

Construction. — According to the 
context such words as "promised," 
"undertook," "agreed," may refer 
either to a "duty" or to a promise 
properly speaking. Chesapeake & O. 
E. Co. v. Stock & Sons, 104 Va. 97, 
51 S. E. 161. 

"The word 'undertook' may, and 
often does, import a promise as used 
in the concrete case. But whether it 
does or not depends upon the con- 
struction of the pleading, and if its 
meaning is ambiguous, then, after ver- 
dict, it must be taken in a sense that 
will sustain the verdict', for a verdict 
cures ambiguity. 1 Chit. PI. (13th Am. 
Ed.) 268; Huntingtower v. Gardiner, 
1 B. & C. 297; Avery v. Hoole, Cowp v 
825. Now, although the word 'under- 
took,' as used in the first part of the 
allegation in question, being followed, 
as it is, by an infinitive phrase, is 
capable of being construed to import 
a binding contract on the part of the 
defendants to do the things mentioned 
in that part, namely, to reduce the 
fracture and set the bone in a proper 
and skillful manner, yet it is also 
capable of being construed to mean, 
especially when taken with the rest 
of the allegation, no more than that 
they accepted the retainer, and under- 
took, in the sense of taking in hand, 
and entering upon, the performance of 
the duties thereof. This view is 
strengthened by the way the word 'un- 
dertook' is used in the last part of 
the allegation, where it is not followed 
by an infinitive phrase, but the lan- 
guage is, 'and undertook the care and 
charge of said leg and the cure there- 
of,' which is hardly capable of being 
construed into a binding obligation. 
This sustains the verdict, as it makes 
the action case." Lawsoh v. Crane & 
Hall, 83 Vt. 115, 74 Atl. 641. 

An action on "case" is construed 
assumpsit, though "proper care" is 
alleged to have been a "duty." Cook 
v. Haggarty, 36 Pa. 67. 

55. Woodson v. Moody, 4 Humph. 
(Tenn.) 303. 



ASSUMPSIT 



185 



may be alleged in hacc verba, or according to its legal effect, but it 
must be definite and the time it was made should be alleged. " 5 An 
alternative promise should be declared on as such, plaintiff averring 
his election. 57 If a declaration does not allege a promise of the de- 
fendant it is demurrable,"' 8 and the defect is not cured by verdict. r ' 9 
In case the plaintiff is suing as assignee the right to sue as assignee 
must be positively averred. 60 This is an issuable fact and may be 
traversed. 01 

(2.) Consideration. —In special assumpsit the consideration must be 
alleged fully and truly. 02 If the same is not alleged at all the declara- 
tion does not state a cause of action; if not stated truly a variance will 
result. In order to state a sufficient consideration for a unilateral 
contract the declaration must allege the performance of the act for 
which the promise is offered with a knowledge thereof and intent to 
accept the same, as the consideration is executed. 63 All that is neces- 
sary to state a sufficient consideration for a bilateral contract is to 
allege the making of the promise for which the counter promise is 
offered. 64 If the consideration is not alleged judgment will be ar- 



56. 111.— North v. Kizer, 72 111. 172; 
White v. Thomas, 39 111. 227. Mass.— 
Avery v. Inhab. of Tyringham, 3 Mass. 
160, 3 Am. Dec. 105. N. H.— Atlantic 
Fire Ins. Co. v. Sanders, 36 N. H. 252. 
S. C. — Brennan v. Shelton, 2 Bailey 
152. 

Time. — Plaintiff need not prove that 
promise was made at time alleged, un 
less time is material. Ala. — Hi.gan v. 
Alston, 9 Ala. 627. Cal— Biven v. 
Bostwick, 70 Cal. 639, 11 Pac. 790. 
Fla. — Dawkins V. Southwick, 4 Fla. 
158. 

57. Hatch v. Adams, 8 Cow. (N. 
Y.) 35. 

58. Weid v. Dixon, 55 W„ Va. 191, 
46 S. E. 918. 

59. Clark V. Reed, 12 Smed. & M. 
(Miss.) 554; McNulty v. Collins, 7 Mo. 
69; Muldrow v. Tappan, 6 Mo. 276. 

60. U. S. — Myers V. Davis, 6 Blatchf. 
77, 17 Fed. Cas. No. 9,986. Fla.— 
Hooker v. Gallagher, 6 . Fla. 351. 
Mass. — Gilbert v. Nantucket Bank, 5 
Mass. 97. Mich. — Rose v. Jackson, 40 
Mich. 29. 

61. Byxbie V. Wood, 24 N. Y. 607. 

62. Conn. — Hendrick v. Seeley, 6 
Conn. 176; Rossiter V. Marsh, 4 Conn. 
196. Ga. — Dickey & Co. v. Leonard. 
77 Ga. 151. Ili. — Indianapolis B. & 
W. R. Co. v. Rhodes, 76 111. 285. Ind. 
Salmon v. Brown, 6 Blatchf. 347. 
la. — Decker & Co. v Bishop, Morris 62. 



Ky.— Stephens v. Crostwait, 3 Bibb 
222; Bruner V. Stout, Hard. 225. Md.— 
Wright v. Gilbert, 51 Md. 140; Dent's 
Admr. v. Scott, 3 Har. & J. 28. Mass. 
Flemmenway v. Hickes, 4 Pick. 497. 
N. H.— Smith v. Webster, 48 N. H. 142; 
Smith V. Wheeler, 29 N. H. 334. N. Y. 
Railey ' v. Freeman, 4 Johns. 2S0; 
Powell V. Brown, 3 Johns. 100. Pa.— 
Cunningham r. Shaw, 7 Pa. 401; 
Whitall V. Morse, 5 Serg. & R. 358. 
S. C. — Douglass v. Davie, 2 McCord 
218; Brooks v. Lowrie, 1 Nott & McC. 
342. Tenn. — Rrown r. Parks, 8 
Humph. 294. Utah— Felt v. Judd. 3 
Utah, 414, 4 Pac. 243. Vt.— People's 
Rank v. Adams. 43 Vt. 195. Eng — 
Streeter v. Horlock, 1 Bing. 34, 8 E. 
C. L. 233. 

"For valuable consideration" not 
enough. Wickliffe r. Hill. 4 Bibb 
(Ky.) 269. Contra. Carter & Nye v. 
Craves, 9 Ycrg. (Tenn.) 446. 

It has been held that in a court of 
limited jurisdiction the consideration 
•is well as promise must be averred to 
be within the jurisdiction. Grover v. 
Gould, 20 Wend. (N. Y.) 227, 32 Am. 
Dec. 533. 

63. Morrow v. Wait?., 18 Pa. 118; 
stempor ?•. Temple. 6 Humph. (Tenn.) 
113, 44 Am. Dec. 296. 

64. Conn. — Russell v. Slade, 12 
Conn. 455. Mass. — Lent r. Paddleford, 

vol m 



186 



ASSUMPSIT 



rested, 65 unless one is proved, when the failure will not be fatal after 
verdict. 66 It is not necessary to allege the consideration in a declara- 
tion on a note, if the note expresses the same. 07 

(3.) Performance of Conditions. —If the promise sued on is condi- 
tional it must be so alleged, 08 and the declaration must then allege the 
happening of conditions precedent, if casual, 69 and the performance 
of conditions precedent (according to the manner), if promissory, 70 
or some legal excuse for non-performance, 71 or the plaintiff is not 
entitled to recover. In the case of concurrent conditions all that the 
declaration need allege is readiness and willingness to perform. 72 
Failure to allege performance of conditions precedent is cured by 
verdict. 73 Conditions subsequent may be omitted, 74 and if the promises 
are independent the plaintiff can maintain his action without pleading 
performance. 75 

10 Mass. 230, 6 Am. Dec. 119. N. Y.— 
Livingston v. Rogers, 1 Caine 487, 583. 
W. Va.— Bannister v. Victoria C. & C. 
Co., 63 W. Va. 502, 61 S. E. 338. 

A declaration on mutual promises 
which fails to allege a promise by 
plaintiff and that defendant promised 
in consideration thereof is demurrable. 
Grover v. Ohio River R. Co., 53 W. Va. 
103, 44 S. E. 147. 

65. Moseley v. Jones, 5 Munf. (Va.) 
23. 

66.' Kellam v. Kellain, 94 Pa. 225. 

67. Connolly v. Cottle, 1 111. 364; 
Richmond v. Patterson, 3 Ohio 36S. 

68. Wait v. Morris, 6 Wend. (N. Y.) 
394; Nat. Val. Bank v. Houston, 66 W. 
Va. 336, 6G S. E. 465. 

69. Meyers v. Phillips, 72 HI. 460; 
Independent Order of Mut. Aid V. 
Paine, 17 111. App. 572; National Val. 
Bank v. Houston, 66 W. Va. 336, 66 S. 
E. 465. 

70. Ala. — Langdon v. Williams, 22 
Ala. 681. Conn. — Andrews v. Ives, 3 
Conn. 368. Ind — Hill v. Hill, 121 
Ind. 255, 23 N. E. 87; Continental 
Life Ins. Co. v. Houser, 89 Ind. 258; 
Ewing v. Codding, 5 Blackf. 433. 
Md.— Consolidation Coal Co. v. Shan- 
nan, 34 Md. 144. N. Y.— Lester v. 
Jewett, 11 N. Y. 453; Wait v. Morris, 
6 Wend. 394; Smith v. Brown, 17 Barb. 
431. Ohio.— Trott v. Sarchett, 10 Ohio 
St. 241. R. I.— Woonsocket U. R. Co. 
v. Orray Taft & Co., 8 R. I. 411. 
Wis. — Maynard v. Tidball, 2 Wis. 34. 
Eng. — Stephens v. DeMedina, 4 Ad. 
& El. (N. S.) 422, 45 E. C. L. 420; 
Atkinson v. Smith, 14 Mees. & W. 695. 

Notice.— Ala.— Fay v. Hall, 25 Ala. 
704; Lawson v. Townes, Oliver & Co., 
2 Ala. 373. Ark. — Jones v. Robinson, 

vol m 



8 Ark. 484. Mass.— Perry v. Botsford, 

5 Pick. 189. 
Demand*. — Ala. — Kennon v. McRae, 

3 Stew. & P. 249, 23 Am. Dec. 393. 
Ark.— Taylor v. Spears, 6 Ark. 381, 
44 Am. Dec. 519; Bradley v. Farring- 
ton, 4 Ark. 532; Byrd V. Cummins, 3 
Ark. 592. Mass. — Griswold v. Plumb, 
13 Mass. 298. W. Va.— Merchants 

6 M. Bank v. Evans, 9 W. Va. 373. 
A demand by telephone and refusal 

by telephone, without identification of 
defendant or his agent therewith, does 
not show a breach. Delugio v. Barney, 
23 R. I. 626, 51 Atl. 425. 

71. 111. — Expanded Metal F. Co. v. 
Boyce, 233 111. 284, 84 N. E. 275. 
Mass. — Newcomb v. Brackett, 16 Mass. 
161. Eng. — Planche v. Colburn, 8 
Bing. 14, 21 E. C. L. 203. 

72. U. S. — Darland v. Greenwood, 1 
McCrary 337, 2 Fed. 660. 111.— Cotting- 
ham v. Owens, 71 111. 397; Henderson 
v. Wheaton, 40 111. App. 538. Mass.— ' 
Palmer v. Sawyer, 114 Mass. 1. 
W. Va.— Davisson v. Ford, 23 W. Va. 
617. 

73. Rogers v. Love, 2 Humph. 
(Tenn.) 417; Bailey v. Clay, etc., 4 
Rand. (Va.) 346. 

74. Rockford Ins. Co. v. Nelson, 65 
111. 415. 

75. Dey v. Dox, 9 Wend. (N. Y.) 
129, 24 Am. Dec. 137; Close v. Miller, 10 
Johns. (N. Y.) 90; Stavers v. Curling, 
3 Bing. N. C. (Eng.) 355. 

Jury. — The question of performance 
is for the jury. Guilford v. Mason, 24 
R. I. 386, 53 Atl. 284. 

Time of commencement of action 
need not be averred. Cook v. Rice, 3 
N. H. 60. 



ASSUMPSIT 



18" 



(4.) Breach. —The declaration in special assumpsit, in order to state 
a cause oi' action, must allege a breach of contract in such a way as 
to show a violation of the right of the plaintiff created by such con- 
tract. Otherwise it is subject to demurrer. 76 Several breaches may be 
alleged in one count. 77 If the declaration contains several counts the 
defendant should be charged with a breach in each instead of in 
toto." 

(5.) Damage. —The declaration should allege the amount of the 
damage or injury caused by the breach of contract. Nominal dam- 
ages are recoverable without such allegation, if, otherwise, there is 
a cause of action. 79 General damages can be recovered on a general 
allegation of damage but not to exceed the sum laid in the declara- 
tion. 80 Special damages are not recoverable at all for injuries which 
do not necessarily result unless the same are specially pleaded, and 
then not to exceed the amount laid in the declaration. 81 

(II.) The Pleas.82— (A.) The General Issue. — (1.) What May Be Shown in 
General. -In special assumpsit the general issue is called the plea 
of non assumpsit, and in it the defendant "says that he did 
not undertake or promise in manner and form as the said . . . 
hath above complained." 83 Under the general issue the defendant 



76. Brickey V. Irwin, 122 Ind. 51, 
23 N. E. 694 (code); Farnsworth V. 
Mason, Brayt. (Vt.) 194. 

In an action of special assumpsit on 
a note payable in installments, plaint- 
iff alleges that two installments have 
elapsed and that the whole sum of 
the note is due. Defendant demurs. 
The last allegation may be rejected 
as surplusage. Tucker v. Bandall, 2 
Mass. 283. 

A declaration on a promise to pa,/ in 
promissory notes does not allege a 
breach in alleging that defendant has 
not paid money. Withers v. -Knox, 4 
Ala. 138. 

77. Smith v. Boston, C. & M. R., 36 
N. H. 458. 

78. Montgomery Mfg. Co. v. Thom- 
as, 20 Ala. 473; Ellis v. Turner's 
Admr., 5 Munf. (Va.) 196. 

79. Willis Damages, 34, 35. 

80. Willis Damages, 37. 111.— 
Kelley v. Third Nat. Bank, 64 111. 
541. Ky— Baltzell V. Hickman, 4 Litt. 
265. Miss. — Geren v. Wright, 8 Smed. 
& M. 360. S. C — Covington v. Lide's 
Exrs., 1 Bay 158. Term.— Crabb 's 
Exr. v. Nashville Bank, 6 Yerg. 332. 

Matters of aggravation alleged do 
not change a count in assumpsit to tort. 
Hoey v. Harty, 48 Mich. 191, 12 N. W. 
44. 



A copy of a note filed without a state- 
ment signed by the plaintiff or his 
attorney, showing the amount due, is 
insufficient under the act of 1887 
to entitle the plaintiff to a judgment 
in the absence of an affidavit of de- 
fense. Gould v. Gage, 118 Pa. 559, 
12 Atl. 476. 

81. Kock & Co. v. Merk, 48 111. 
A pp. 26; Baker v. Liscoe, 7 T. R. 171, 

101 Eng. Reprint 916; Willis Damages, 
27, 37, 38. 

The liquidation of damages is a 
matter of evidence and need not be 
pleaded. Clarke v. Gray, 6 East 564, 

102 Eng. Reprint 1404. 

82. Classification of pleas: dila 
tory pleas; pleas to the jurisdiction of 
the court; pleas to the disability of 
plaintiff; pleas in abatement of the 
writ, or count; pleas to the action; 
the general issue; a special plea in bar. 
Will's Gould PI., 94-97; Andrews' 
Steph. PI., 136, 146. 

83. Andrews' Steph. PI., 231. 
Defendants cannot sever in pleading. 

Meagher v. Bachelder, 6 Mass. 444. 

"Never indebted as alleged" is a 
proper plea in an action of assumpsit 
in Marvland. Code, art. 75, §23. 
Fisher v. Diohl, 94 Md. 112, 50 Atl. 432. 

A plea of the general issue that de- 
fendant did not "promise in manner 

vol in 



188 



ASSUMPSIT 



may in general give in evidence anything which tends to deny his 
liability, either because he was never indebted, or because his liability 
has been extinguished (that is, that the plaintiff does not have a sub- 
sisting cause of action), but not matters which affect the remedy 
merely. 84 

(2.) Particular Matters Which May Be Shown.- (a.) Payment.— Payment 
may be given in evidence under the general issue. 85 Payment 
after the commencement of suit cannot be given under the general 
issue except in reduction of damages. 80 

(b.) Accord and satisfaction may be shown under the general issue. 87 
(c.) Belease. — A release may be given under the general issue. 88 
(d.) Former Recovery. — Former recovery, or adjudication, may be 
given under the general issue. 89 

(e.) Assignment. —Plaintiff's insolvency and assignment of property 
to trustees may be shown under the general issue. 80 



or form," omitting "undertake or," is 
good, as undertake and promise are 
equivalent words. Shufeldt v. Fidelity 
Sav. Bank, 93 111. 597. 

If two be . sued on a joint promise 
and one appears, the general issue 
should be "he and the other defendant 
did not promise." Butman v. Abbot, 

2 Me. 361. 

"Not guilty" in assumpsit is cured 
by verdict. Cavene v. McMiehael, 8 
Serg. & R. (Pa.) 441. 

Non est factum not proper plea. 
Town of Winsor v. Hallett, 97 111. 204; 
Lamb v. Holmes, 60 111. 497. 

84. U. S — Craig v. State of Mis- 
souri, 4 Pet. 410, 7 L. ed. 903. 111. — 
Wilson v. King, 83 111. 232; American 
Cent. Ins. Co. v. Birds Bldg. & L. Assn., 
81 111. App. 25S; Huff v. Wolfe, 48 111. 
App. 589. N. Y — Edson v. Weston, 7 
Cow. 278. Pa.— Falconer v. Smith, 18 
Pa. 130. Va — Virginia F. & M. Ins. 
Co. v. Buck, 88 Va. 517, 13 S. E. 973. 

But see, on tender, Dunlop v. Funk, 

3 Har. & M. (Md.) 318. 

The rule as to what is admissible 
under the general issue is the same in 
special assumpsit as in general assump- 
sit. Although it would seem that spe- 
cial matters of defense which accrue 
subsequently to the making of the 
promise should not be admissible under 
the general issue in special assumpsit, 
the rule is otherwise, and anything 
which shows that an obligation never 
existed or that it lias been extinguished 
may be shown. A general denial dif- 
fers from the general issue in that 

VoL III 



affirmative defenses are not admissible 
under a general denial, and the reason 
is that the general denial merely denies 
those particular facts alleged in the 
complaint, while the general issue 
covers everything which disproves a 
subsisting liability. Will's Gould PI., 
499-502; Bliss Code PI., §§324, 330; 
Ensey v. The Cleveland & St. L. R. Co., 

10 Ind. 178. 

85. U. S. — Jeffrey v. Schlasinger, 
Hempst. 12, 13 Fed. Cas. No. 7,253a. 
Ala.— McMillan v. Wallace, 3 Stew. 185. 
Cal. — Wetmore v. San Francisco, 44 
Cal. 294. Ind. — Mahon v. Gardner, 6 
Blackf. 319. N. J. — Dingee v. Letson, 

15 N. J. L. 259. N. Y.— Clark v. Yale, 
12 Wend. 470. Vt.— Worthen v. 
Dickey, 54 Vt. 277; Britton v. Bishop, 

11 Vt. 70. 

86. N. H.— Pemigewasset Bank v. 
Brackett, 4 N. H. 557. N. J— Hend- 
rickson v. Hutchinson, 29 N. J. L. 180. 
N. Y.— Boyd v. Weeks, 2 Denio 321, 43 
Am. Dec. 749. 

In the same way an award pendente 
lite cannot be given. Harrison v. Brock, 
1 Munf. (Va.) 22. 

87. First Nat. Bank v. Kimberlands, 

16 W. Va. 555. 

88. Bartleman v. Douglass, 1 Cranch 
C. C. 450, 2 Fed. Cas. No. 1,073; Daw- 
son v. Tibbs, 4 Yeates (Pa.) 349. 



89. 
594. 
App. 

90. 
(Pa.) 394. 



Niles v. Tottman, 3 Barb. (N. Y.) 
See Bennett v. Pulliam, 3 111. 
185. 

Kennedy v. Ferris, 5 Serg. & R. 



ASSUMPSIT 



189 



(f.) rescission. —A rescission of a contract, or a substitution of a new 
contract, may be shown under the general issue. 01 

(g.) Breach. —Discharge by breach may be shown under the general 
issue. - 

(h.) Judgment. — Discharge by judgment is admissible under the gen- 
eral issue. 03 

(i.) Illegality. — The illegality of the agreement may be shown under 
the general issue. 04 

(j.) Non-execution. — Non assumpsit sworn to puts in issue the ex- 
ecution of the writing sued on. 05 

(k.) Incapacity. — Lack of contractual capacity may be shown un- 
der the general issue. 96 

(1.) Fraud. — Fraud or deceit, may be shown under the general is- 
sue. 97 

(m.) No Consideration. — The want of consideration or the failure 
of consideration (discharge by casual condition subsequent), may be 
shown under the general issue. 98 

(u.) Readiness To Perform. — Readiness to perform may be shown under 
the general issue. 99 

(o.) No Title. — That the plaintiff, or his assignor, has no title may 
be shown under the general issue. 1 



91. Heaton v. Myers, 4 Colo. 59; 
Ward V. Atbens M. Co., 98 111. App. 227. 

92. U. S.— Kelley v. Fahrney, 123 
Fed. 280, 59 C. C. A. 298. Ala.— Rob- 
inson v. Windham, 9 Port. 397. 111. — 
Western Assn. Co. v. Mason, 5 111. App. 
141. N. Y.— Wilt v. Ogden, 13 Johns. 
56. 

93. Insurance Co. V. Harris, 97 U. S. 
331, 24 L. ed. 959. 

94. Ala. — Matthews v. Turner, 2 
Stew. & P. 239. Del.— Cleadon v. 
Webb, 4 Houst. 473. Ga. — Johnson v. 
Ballingall, 1 Ga. 68. Ky.— Jones v. 
Pryor, 1 Bibb 614. 

"Under a general denial, the de- 
fendant may give evidence tending to 
disprove any fact which the plaintiff is 
bound to prove in order to recover. 
But in this case it neither appeared 
from the complaint or the evidence 
presented by the plaintiff that the con- 
tract was illegal, and as we have al- 
ready shown when the plaintiff rested 
the evidence established a cause of 
action. The general denial put in issue 
all matters which the plaintiff was 
bound to prove; nothing more. He 
was required to prove the contract en- 
tered into by defendant which was, on 
its face, valid. Having accomplished 



that he could not be compelled to enter 
into a controversy over matters not 
appearing in the contract involving the 
question of its validity or invalidity 
because he had not been notified by the 
answer that the defendant proposed 
to assert his own participation in that 
which was a violation of law as a shield 
against the consequences of his agree- 
ment." Milbank v. Jones, 127 N. Y. 
370, 28 N. E. 31. See Ah Doon v. 
Smith, 25 Ore. 89, 34 Pac. 1093. 

95. Gray v. Tunstall, Hempst. 558, 
10 Fed. Cas. No. 5,730. 

96. Me.— Fuller v. Bartlett, 41 Mo. 
241. Mass. — Mitchell v. Kingman, 5 
Pick. 431. N. J. — Dacosta O. Davis. 24 
N. J. L. 319. S. C— Evans v. Terry, 
1 Brev. 80. 

97. Strong v. Linington, 8 HI. App. 
436; Sill v. Rood, 15 Johns. (N. Y.) 230. 

93. Me.-Clark v. Holwav, 101 Me. 
391, 64 Atl. 642. Mo. — Block v. Elliott, 
1 Mo. 275. N. M— Staab v. Ortiz, 3 
X. M. 33, 1 Pac. 857. S. C— Talbert v. 
Cason, 1 Brev. 298. 

99. Robinson v. Bachelder, 4 N. H. 
40. 

1. Emley v. Perrine, 58 N. J. L. 472, 
33 Atl. 951. 

vol m 



190 



ASSUMPSIT 



(3.) Effect of Giving Notice of Special Matters. -A special plea, or a 
notice under the general issue giving notice of special matter, 
will be rejected if the matter therein set up can be given under the 
general issue. 2 

(4.) What Admitted By. — (a.) Everything Not Traversed. — Whatever is 
traversible and not traversed is admitted. 3 

(b.) Legal Sufficiency of Declaration. — By pleading the general issue 

the defendant impliedly admits the legal sufficiency of the declara- 
tion. 4 

(c.) Character of Person Suing.— By pleading the general issue the 
defendant admits the character of the person suing and the character 
in which he is sued. 5 

(B.) Special Pleas.6- Tender, 7 statute of limitations, 8 bankruptcy, 9 
non-joinder of proper parties defendant, 10 jurisdiction, 11 disability 
of plaintiff to sue, 12 set-off, 13 and many other matters 14 can be taken 
advantage of only by being specially pleaded. The defendant is also 
at liberty to plead specially any matters in avoidance of the contract 
or discharge of the action. 

(III.) Demurrer.— Either party may demur to the pleading of his 
adversary. - A demurrer denies the legal sufficiency of the allegations 
demurred to and tenders an issue of law instead of fact. A demurrer 
may be general or special. A general demurrer is sufficient where 



2.' N. Y. — Smith v. Gregory, 8 Cow. 
114. Vt. — University of Vermont v. 
Baxter's Est., 42 Vt. 99. W. Va.— 
Bennett v. Perkins, 47 W. Va. 425, 35 
S. E. 8. 

3. Capital City Mut. F. Ins. Co. v. 
Detwiler, 23 111. App. 656. 

4. The Wrought Iron Br. Co. v. 
Comrs. of Highways, 101 111. 518. 

5. Coffee v. Eastland, 5 Fed. Cas. 
No. 2,945; Tillman v. Ailles, 5 Smed. & 
M. (Miss.) 373, 43 Am. Dec. 507. 

6. A plea in bar to the whole action 
when the matters set forth bar only a 
part is not good. Farquhar v. Collins, 
3 A. K. Marsh. (Ky.) 31. 

A brief statement filed with the 
general issue may amount to one or 
more pleas in bar. Moore v. Knowles, 
65 Me. 493. 

Plea, "is not guilty of matters there- 
in alleged" is not appropriate and may 
be stricken from file. Cunyus v. Guen- 
ther, 96 Ala. 564, 11 So. 649. 

If defendant sets up a condition 
subsequent which would avoid his lia- 
bility he should allege the fulfilling of 
the condition, or the plea will be bad. 
Smith v. Riddell, 87 111. 165. 

7. Will's Gould PI., 501; Hinchy V. 
Foster, 3 McCord (S. C.) 428. 

vol ni 



8. Bullard v. Lopez, 7 N.-M. 624, 41 
Pae. 516; Armstrong v. Dalton, 15 N. C. 
568. 

9. Will's Gould PL, 501. 

10. Ives v. Hulet, 12 Vt. 314; Nash 
v. Skinner, 12 Vt. 219, 36 Am. Dec. 338; 
Rutler & Co. v. Sullivan, 25 W. Va. 427. 

11. Will's Gould PL, 405. See 
Herring v. Poritz, 6 111. App. 208. 

12. Will's Gould PL, 420. 

13. Bell v. Crawford, 8 Gratt. (Va.) 
110. See Clark V. Fensky, 3 Kan. 389; 
Meagher v. Morgan, 3 Kan. 372, 87 
Am. Dec. 476. 

14. A plea of partial failure of per- 
formance is not good as it does not 
authorize rescission. Franklin v. Mil- 
ler, 4 Ad. & El. 599, 31 E. C. L. 148. 

A plea that defendant sued as prin- 
cipal, indorsed the suit (in suit) as 
guarantor is good on demurrer. Dibble 
v. Duncan, 2 McLean 553, 7 Fed. Cas. 
No. 3,880. 

A plea in abatement, in a suit on a 
note, that the writ and indorsement do 
not show the sum demanded is a good 
plea, but the court may permit an 
amendment. Foster v. Collins, 5 Smed. 
& M. (Miss.) 259. 

Puis darrein continuance is not a 
waiver of other pleas previously filed. 



ASSUMPSIT 



191 



the objection is on a matter of substance. 15 A special demurrer is 
necessary where the objection turns on a matter of form, and no ob- 
jection can be taken advantage of which is not minutely Bet forth," 
and if a declaration containing such defects is not demurred to it is 
cured by verdict. 17 A general demurrer to the whole declaration will 
be overruled if any count is good. 18 A demurrer runs through the 
record, so that a demurrer to a plea will reach a substantial defect in 
the declaration. 19 Defendant cannot demur and plead to the same 
count. 20 If a demurrer is overruled it is error to enter final judg- 
ment. 21 

(IV.) Replication. — The replication must support the declaration. 22 
It need not traverse immaterial matter in plea. 23 If it is double it is 
demurrable. 24 



Heyfrom v. Mississippi Union Bank, 7 
Smed. & M. (Miss.) 434. 

A defendant may abandon any part 
of his defense during trial, in the dis- 
cretion of the court. He may withdraw 
general issue in assumpsit and rely on 
special pleas. Leonard v. Patton, 106" 
111. 99. 

In the absence of a plea and of the 
defendant the court impaneled a jury 
and upon the verdict rendered judg- 
ment without entering default. This 
is error, as default should have been 
entered. Lehr v. Vandveer, 48 111. App. 
511. 

In an action of special assumpsit, 
with pleas of non-assumpsit, payment 
and accord and satisfaction, a verdict 
that the defendant did assume and un- 
dertake negatives all the pleas. Mar- 
tin v. Williams, 7 Humph. (Tenn.) 220. 

Plea of surety that he was not to pay 
note, or of one maker that he was to 
be discharged on part payment, is bad 
on demurrer. Dundy v. Gamble, 59 Ga. 
434; Shed V. Pierce, 17 Mass. 623. 

Plea that plaintiff is not owner of 
note is demurrable if not verified. 
Jennings v. Cummings, 9 Port. (Ala.) 
309. 

The defendant must plead specially 
a tender, a set-off, the statute of limi- 
tations, a discharge in bankruptcy, that 
the plaintiff has become an alien enemy 
since the making of the contract; and 
he is at liberty to plead any matter 
which either shows that the contract is 
voidable or void, like infancy, lunacy, 
coverture, duress, lack of consideration, 
illegality, and statute of frauds; or 
shows that the contract has been dis- 
charged, like rescission, performance, 



and payment; or that the action there- 
on has been discharged, like bank- 
ruptcy, accord and satisfaction, arbitra- 
tion, release, judgment, and merger, 
though the same are admissible under 
the general issue 1 Chit. PL, 473 475. 

15. Andrews' Steph. PI., 220. 

16. Bogardus v. Trial, 2 111. 63; 
Iron Clad Dryer Co. v. Chicago Tr. & 
Saw Bank, 50 111. App. 461. 

17. Bemis v. Faxon, 4 Mass. 263; 
Twp. of East Union v. Comrey, 100 Pa. 
362. 

Under the Virginia code, 1887, §3272, 
which provides that on demurrer the 
court shall not regard any defect in a 
declaration unless there be omitted 
something so essential that judgment 
according to law and the very right of 
the cause cannot be given, a declara- 
tion is not subject to demurrer be- 
cause of the omission of the usual al- 
legation of a promise to pay. City of 
Newport News v. Potter, 122 Fed. 321, 
58 C. C. A. 483. 

18. Ala.— The Bank of Mobile v. 
Huggins' Admr., 3 Ala. 206. Ind.— 
Board of Comrs. v. Harrington, 1 
Blackf. 260. Ky— Abbv v. Ferguson, 
1 T. B. Mon. 99. Va.— Gray v. Kemp, 
88 Va. 201, 16 S. E. 225. 

19. Myrick v. Merritt, 22 Fla. 335. 

20. Pettibone v. Stevens, 6 Hill 
(N. Y.) 258. 

21. 111. — Armstrong- v. "Webster, 30 
111. 333. Mich.— Mason v. Reynolds, 33 
Mich. 60. Miss. — Rodgers v. Hunter, 
8 Smed. & M. 640. 

22. Will's Gould PI., 93. 

23. Austin v. Walker, 26 N. H. 456. 

24. Wadleigh v. Pillsburv, 14 N. II. 
373. 

VoL m 



192 



ASSUMPSIT 



e. Conflict of Laws. — The proper action is determined by the lex 
fori; 25 substantive matters by the lex loci. 2a 

3. General Assumpsit. — a. Definition.— General assumpsit is an 
action of assumpsit for the recovery of damages for the breach of 
the promise implied by law in quasi-contracts, in inferred contracts, 
and on contracts performed except for the payment of money. 27 

b. Hist ory. — General assumpsit, so called because there are gen- 
eral forms devised for stating the various causes of action, is an ac- 
tion on the case in the nature of debt. The explanation of general 
assumpsit is found in the older action of debt, which lay for any 
pecuniary demand which could be reduced to certainty, whether cre- 
ated by contract, custom, or record. The consideration in general 
assumpsit, as in debt, is quid pro quo, or benefit to the promisor (de- 
fendant). General assumpsit is bounded by the limits of debt, ex- 
cept as it was extended to inferred contracts and other quasi-contracts 
(because of their analogy to debts) by the quantum and common 
counts. It owed its origin to the desire of the court of Queen's Bench 
for more extensive jurisdiction and to its freedom from various tech- 
nicalities that hampered the action of debt. Its classic count was, 
being indebted he promised; its typical consideration was a precedent 
debt. Debt was a real rather than a personal action, but the debt 
was generally created by a promise to pay a definite amount of money. 
Indebitatus assumpsit was not maintained on such promise, for debt 
was 'the remedy on it, but on the new promise to pay the debt, — at 
first express, then implied. General assumpsit, unlike special as- 
sumpsit, did not create a new substantive right, but merely introduced 
a new form of procedure, in its beginning. At first general assumpsit 
was allowed on any debt created by simple contract. Then it was 
extended to promises implied in fact, or inferred contracts, though 
they did not create a technical debt. Finally it was extended to all 
the modern quasi-contracts for the payment of money. 28 



In an action of trespass on the case 
on premises with a plea of non- 
assumpsit and payment, if there is no 
replication there is no issue, and until 
there is a replication a jury should not 
be sworn to try the issues. Miles v. 
Rose, Hempst. 37, 17 Fed. Cas. No. 
9,544a. 

In an action of assumpsit on a note, 
with a plea alleging all of the elements 
of fraud, a replication denying the 
fraudulent representatio'n is good on 
demurrer. Bradner v. Demick, 20 
Johns. (N. Y.) 404. 

A replication alleging a promise to 
pay (and therefore money), when the 
proof is a promise to pay in good notes, 
is no bar to the statute of limitations. 
Taylor v. Stedman, 35 N. C. 97. 

A replication to a plea of the statute 

vol. hi 



of limitations of six years must allege 
that the defendant was out of the state 
till within six years before the cause 
of action, to make that sort of an an- 
swer good. Shapley v. Felt, 3 N. H. 
121. 

25. Md. — Trasher v. Everhart, 3 Gill 
& J. 234. Mass.— McClees v. Burt, 5 
Mete. 198. N. H.— Douglas v. Oldham, 
6 N. H. 150. 

26. Kimball v. Kimball (N. H.), 73 
Atl. 408. 

27. Andrews' Steph. PI., 86n; Will's 
Gould PI., 48; Willis Contracts, 4, 8-10. 
General assumpsit "rests only on a 
legal liability springing out of a con- 
sideration received." Cutter v. Powell, 
2 Sm. L. C. (8th ed.) 48, note. 

28. 2 Har. L. Rev. 16-19, 53-69. 
U. S— Collins v, Johnson, Hempst, 279, 



ASSUMPSIT 



103 



c. Scope.— (I.) When Action Will Not Lie.— (A.) Express Contract Un- 
performed.— General assumpsit will never lie for any breach of a 
contract except the refusal or failure to pay a definite amount 
of money. In order to lie a debt must be created. Otherwise the law- 
will not imply a promise in fact when there is an express pron. 
Special assumpsit is the remedy if any. 29 

(B.) Judgments. —Indebitatus assumpsit will lie on a foreign judg- 



6 Fed. Cas. No. 3,015a. Ark.— Wolf v. 
Irons, 8 Ark. 63. Ga.— Mahaffey v. 
Petty, 1 Ga. 261. Eng.— Brill v. Neele, 
3 Barn. & Aid. 208, 5 E. C. L. 264, 106 
Eng. Reprint 638; Slade's Case, 4 Cuke 
92b, 76 Eng. Reprint 1074. 

Either indebitatus assumpsit or debt 
will lie on account. Collins v. Johnson, 
Hempst. 279, 6 Fed. Cas. No. 3,015a. 

Debt and indebitatus assumpsit dis- 
tinguished. Metcalf v. Robinson, 2 
McLean 363, 17 Fed. Cas. No. 9,497; 
McGinnity v. Laguerenne, 10 111. 101. 

Tf the statute of limitations has run 
against a debt, in declaring in debt 
count on the acknowledgment, in 
indebitatus assumpsit, on the original 
promise. Butcher v. Ilixton, 4 Leigli 
(Va.) 519. 

29. U. S. — Perkins V. Hart, 11 
Wheat. 237, 6 L. ed. 463. Ala.— Dees 
v. Self Bros, 51 So. 735; Ezell v. King, 
93 Ala. 470, 9- So. 534; Burkham v. 
Spiers, 56 Ala. 547; Vincent v. Rogers, 
30 Ala. 471. Ark. — Bernard v. Dickins, 
22 Ark. 351; Jackson v. Jones, 22 Ark. 
15S; Coster v. Davies, 8 Ark. 213, 46 
Am. Dec. 311. Cal. — Kalkmann v. Bay- 
lis, 17 Cal. 291. Conn.— Leonard v. 
Dyer, 26 Conn. 172, 6S Am. Dec. 382; 
Winton v. Meeker, 25 Conn. 456; Rus- 
sell v. South Britain Soc, 9 Conn. 508. 
Del. — Truitt v. Fahey, 3 Penne. 573. 
111.— Expanded Mut. F. Co. v. Boyce, 233 
111. 2S4, 84 N. E. 275; Elder v. Hood, 
38 Til. 533. Ind.— Swift v. Williams, 2 
Ind. 365; Johnson v. Clark, 5 Rlackf. 
564; Hoagland v. Moore, 2 Blackf. 167. 
la. — Lorton v. Agnew, Morris 64. Ky. 
Carson V. Allen, 6 Dana 395; Markley 
v. Withers, 4 T. B. Mon. 14; Halley V. 
M 'Cargo, 4 Bibb 349. La. — Mazureau 
v. Morgan, 25 La. Ann. 281; Willis v. 
Melville, 19 La. ADn. 13. Me.— Hidden 
Steam M. Co. v. Westervelt. 67 Me. 
446; Jenks v. Mathews, 31 Me. 318. 
Md. — Speake v. Sheppard, 6 Har. & J. 



81. Mich. — Applebaum v. Goldman, 155 
Mich. 369, 121 N. W. 288; Bedier v. 
Fuller, 106 Mich. 342, 64 N. W. 331; 
Bromley v. Goff, 75 Mich. 213, 42 N. \V. 
810; Butterfield v. Seligman, 17 Mich. 
95. Mo. — Reifschneider v. Beck, 129 

5 W. 232; Williams v. Chicago, S. F. 

6 C. R. Co., 112 Mo. 463, 20 S. W. 631, 
34 Am. St. Rep. 403; Ingram v. Ash- 
more, 12 Mo. 574; Chambers v. King, 

5 Mo. 517; Stollings V. Sappington, 8 
Mo. 118; Helm v. Wilson, 4 Mo. 41, 28 
Am. Dec. 336. Neb.— Mayer O. Bryck, 
46 Neb. 221, 64 N. W. 691; Powder R. 
L. S. Co. v. Lamb, 38 Neb. 339, 56 N. 
W. 1019. N. H. — Colburn v. Pomeroy, 
44 N. H. 19. N. J.— Stewart Mfg. <'". 
v. Iron Clad Mfg. Co., 67 N. J. L. 577, 
52 Atl.-391; Voorhees V. Combs, 38 
X. J. L. 494; Perdicaris r. Trenton City 
Br. Co., 29 X. J. L. 367. N. Y.— Rrund- 
age v. Village of Port Chester, 102 
N. Y. 494, 7 N. E. 398; Clark v. Smith, 
14 Johns. 326. N. C— Winstead v. 
Reid, 44 N. C. 76, 57 Am. Dec. 571. 
Pa. — Powelton Coal Co. v. MeShain. 75 
Pa. 238. S. C. — Geer t'. Brown, 11 Rich. 
42. Term. — Thompson v. French, 10 
Verg. 452. Tex. — Gammaje v. Alexan- 
der, 14 Tex. 414. Vt. — Hemenway V. 
Smith, 28 Vt. 701. W. Va.— Robinson 
v Weltv, 40 W. Va. 385, 22 S. E. 73. 
Wis.— fietz v. Tietz, 90 Wis. 66, 62 N. 
W. 939. Eng. — Read V. Rami, in Barn. 

6 C 43S. 21 E. C. L. 106. 109 Eng. Re- 
print 513; Ferguson v. Carrinirton. 3 
Car. & P 157, 14 E. C. L. 387; Hulle v. 
Heightman, 2 East 14.".. 102 Eng. Re- 
print 324; Cutter v. Powell, 6 T. R. 
320, 101 Ens:- Reprint "573; Weston V. 
Downes, 1 Doug. 23, 99 Eng. Reprint 19. 

If in special assumpsit the plaintiff 
eannot recover because of a variance, 
but there is a good contract unper- 
formed in evidence, he cannot recover 
on the common counts. Hoorer r. 
Eiland, 21 Ala. 714. 

VoL in 



194 



ASSUMPSIT 



ment, but debt is the only action that will lie on a domestic judg- 
ment, 30 unless assumpsit is permitted by statute. 31 

(C.) Specialties. —General assumpsit will not lie upon a contract 
under seal. 32 The proper action is either covenant or debt. But if 
a simple contract is substituted for a contract under seal, assumpsit 
and not covenant will lie. 33 Several states have by statute modified 
the rule so as to permit the action of assumpsit on all demands formerly 
recoverable in debt,- covenant and assumpsit. 34 

(D.) Bent, Title. — General assumpsit does not lie against a tres- 
passer for rent, 35 nor to try the title to real estate. 36 



30. U. S — Mellin v. Horlick, 31 Fed. 
865. Ala.— Knapp 's Exr. v. Kingsbury, 
51 Ala. 563. Mass. — Buttrick v. Allen, 
8 Mass. 273, 5 Am. Dec. 105. S. C. — 
Lambkin v. Nance, 2 Brev. 99. Eng. — 
Harris v. Saunders, 4 Barn. & C. 411, 
10 E. C L. 373, 107 Eng. Beprint 1112. 

The obligation of record is the only 
quasi-contract in the nature of debt 
which is not enforceable by an action 
in general assumpsit. 2 Har. L. Bev. 
64. 

31. Detroit Sav. Bank v. Ziegler, 49 
Mich. 157, 13 N. W. 496, 43 Am. Eep. 
456; Woods v. Ayres, 39 Mich. 345, 33 
Am. Eep. 396. 

32. U. S. — Fresh v. Gilson, 5 Craneh 
C. C. 533, 9 Fed. Cas. No. 5,112. Ala.— 
Smith v. Sharp, 50 So. 381; Horton v. 
Bonalds, 2 Port. 79; Hatch v. Craw- 
ford, 2 Port. 54. Conn. — New London 
City Nat. Bank v. Ware Biver B. Co., 
41 Conn. 542. Ky. — Hubbard v. Beck- 
with, 1 Bibb 492. Me.— Bowes v. 
French, 11 Me. 182. Md. — Firemen's 
Ins. Co. v. Floss, 67 Md. 403, 1 Am. Bep. 
398. Mass.— Codman v. Jenkins, 14 
Mass. 93. N. H— Knowlton v. Tilton, 
38 N. H. 257; Little v. Morgan, 31 N. H. 
499. N. Y. — Wood v. Edwards, 19 
Johns. 205. N. C. — Wilson V. Murphey, 
14 N. C. 352. 

General assumpsit does not lie on an 
award when it is made pursuant to 
submission under seal. McCargo v. 
Crutcher, 23 Ala. 575; Holmes v. Smith, 
49 Me. 242. But see Averill v. Buck- 
ingham, 36 Conn. 359. 

Where there is privity a party may 
waive his right to sue on a sealed note, 
sue in indebitatus assumpsit on the 
original consideration and introduce 
the note in evidence. Hanna v. Pegg, 
1 Blackf. (Ind.) 181. 

An injunction bond without a seal 

vol m 



is a simple contract. Cox v. Vogh, 33 
Miss. 187. 

Corporation liable, if seal ineffective. 
N. J.— Baptist Church v. Mulford, 8 
N. J. L. 182. N. Y— Bandall v. Van 
Vechten, 19 Johns. 60, 10 Am. Dec. 192. 
S. C. — Garvey v. Colcock, 1 Nott & M. 
231. 

33. Conn. — Hinsdale v. Eells, 3 Conn. 
377. Mass. — Munroe v. Perkins, 9 Pick. 
298, 20 Am. Dec. 475. N. Y— Miller v. 
Watson, 7 Cow. 39. Vt. — Smith v. 
Smith, 45 Vt. 433; Briggs v. Vermont 
Cent. B. Co., 31 Vt. 211; Barker v. 
Troy & B. E. Co., 27 Vt. 766. 

Becovery may be had in indebitatus 
assumpsit for work, labor and materials 
for work done under an agreement un- 
der seal, if the original covenant is 
broken so that there is no recovery on 
it. Jewell v. Schroeppel, 4 Cow. (N. Y.) 
564. 

34. Me.— Eumford Falls Boom Co. 
v. Eumford Falls Paper Co., 96 Me. 96, 
51 Atl. 810. Pa. — Charles v. Scott, 1 
Serg. & E. 294. W. Va. — Middle States, 
etc. Co. v. Engle, 45 W. Va. 588, 31 
S. E. 921. 

35. Ala. — Swanson v. Brown, 160 
Ala. 432, 49 So. 675; Eastland v. Sparks, 
22 Ala. 607. Cal. — Sampson v. Schaef- 
fer, 3 Cal. 196. Eng. — Salmon v. Smith, 
1 Saund. 206, 85 Eng. Eeprint 209. 

See 2 Har. L. Eev. 377-380. 

But a tenancy is not necessary. 
Lazarus v. Phelps, 152 U. S. 81, 14 Sup. 
Ct. 477, 38 L. ed. 363, where defendant 
who had pastured cattle on plaintiff's 
unfenced lands was held liable for use 
and occupation. 

36. 111.— King v. Mason, 42 111. 223, 
89 Am. Dec. 426. Pa. — Lewis v. Eob- 
inson, 10 Watts 338. W. Va.— Parks v. 
Morris, 63 W. Va. 51, 59 S. E. 753. 

As to action under statute, see Bum- 



ASSUMPSIT 



195 



(E.) No Privity.— General assumpsit will not lie for breach of a 
contract to pay money to a third person, 37 unless such contract creates 
a debt, as where one person puts money into a second person's hands 
for the benefit of a third person. 38 

(F.) Tort Without Benefit to Estate —A person cannot waive his 
tort action and sue in general assumpsit when the tort does not 
benefit the wrongdoer's estate, though it may injure the estate or 
person of the plaintiff. 39 Under any circumstances, if the wrongdoer 
does not convert money, or sell the goods appropriated and convert 
them into money, no form of general assumpsit will lie except the 
action for goods bargained and sold, and such action is not permitted 
in all jurisdictions. 40 

(G.) Voluntary Services. —General assumpsit will not lie for money 
voluntarily paid out or services voluntarily rendered; 41 nor for bene- 
fits conferred against the express declaration, of a party unless the 
law throws an obligation on him. 42 



ford Falls Boom Co. v. Rumford Falls 
Paper Co., 96 Me. 96, 51 Atl. 810. 

37. Mass. — Rogers v. Union Stone 
Co., 130 Mass. 581, 39 Am. Rep. 478. 
Mich. — Labadie v. Detroit L. & N. R. 
Co., 125 Mich. 419, 84 N. W. 622; Car- 
penter v. Graham, 46 Mich. 531, 9 N. W. 
841. N. Y. — Mason v. Munger, 5 Hill 
613. 

But see Hall v. Marston, 17 Mass. 
575. 

38. Ala.— Wooten v. Steele, 98 Ala. 
252, 13 So. 563; Hitchcock v. Lukens 
& Son, 8 Port. 333. N. H.— Knapp v. 
Hobbs, 50 N. H. 476. N. J.— Budd v. 
Hiler, 27 N. J. L. 43. N. C— Draughan 
v. Bunting, 31 N. C. 10. Pa.— Wynn's 
Admr. v. Wood, 97 Pa. 216. 

39. Mich.— Plefka v. Detroit United 
R., 147 Mich. 641, 111 N/ W. 194. 
Neb. — Carson R. Lumb. Co. v. Bassett, 
2 Nev. 249. N. H.— Page v. Babbit, 21 
N. H. 389. R. I.— Whipple v. Stephens, 
25 R. I. 563, 57 Atl. 375. Vt.— Stearns 
r. Dillingham, 22 Vt. 624, 54 Am. Dec. 
88. 

40. Ala. — Crow v. Boyd's Admr., 
17 Ala. 51. Ark. — Hutchinson v. 
Phillips, 11 Ark. 270. Ga.— Woodruff v. 
Zaban & Son. 133 Ga. 24, 65 S. E. 123, 
134 Am. St. Rep. 186. Mass.— Allen v. 
Ford, 19 Pick. 217. Mich. — McCormick 
H. M. Co. v. Waldo, 128 Mich. 135, 87 
N. W. 55; Grinnell v. Anderson, 122 
Mich. 533, 81 N. W. 329; Watson v. 
Stover, 25 Mich. 386. Mo. — Sandeen v. 
Kansas City, etc. R. Co., 79 Mo. 273. 
But see Gordon v. Bryner, 49 Mo. 570. 



N. H.— Smith v. Smith, 43 N. H. 536. 
N. Y — Terrv v. Munger, 121 N. Y. 161, 
24 N. E. 272, 18 Am. St. 803, 8 L. R. 
A. 217. Pa.— Reilly v. Crown P. Co., 
213 Pa. 595, 63 Atl. 253; Boyer v. Bul- 
lard, 102 Pa. 555. E. I.— Wilder v. Aid- 
rich, 2 R. I. 518. Vt. — Saville, Somers 
& Co. v. Welch, 58 Vt. 683, 5 Atl. 491. 

Under Michigan statutes assumpsit 
will not lie unless property is con- 
verted into money, unless there is a 
trespass on realty or some contract re- 
lation between plaintiff and defendant. 
Lyon v. Clark, 129 Mich. 381, 88 X. \V. 
1046. 

When a contract is procured by fraud 
the party defrauded cannot waive the 
tort action and sue in indebitatut 
assumpsit, without first rescinding the 
express contract. U. S. — Cummings v. 
Synnott, 120 Fed. 84, 56 C. C. A. 490. 
Cal.— Bechtel v. Chase, 156 Cal. 707, 
106 Pac. 81. HI. — Ingersoll v. Moss, 44 
111. App. 72. 

See Camp v. Pulver, 5 Barb. (N. Y.) 
91; Crown Cvcle Co. v. Brown, 39 Ore. 
285, 64 Pac' 451. 

41. Me. — Moody v. Moody, 14 Me. 
307. Mich. — Coe v. Wager, 42 Mich. 
49, 3 N. W. -l v; - N. J.-=-Force v. Haiues, 
17' N. J. L. 385. N. Y. — Ingraham v. 
Gilbert, 20 Barb. 151. Eng.— Child v. 
Morley, 8 T. R. 610, 101 Eng. Reprint 
1574. 

42. .Tewett v. Inhab. of Somerset, 1 
Me. 125; Earle v. Coburn, 130 Mass. 
596. 

VoL in 



196 



ASSUMPSIT 



(H.) Not for Breach op Certain Quasi-Contracts.— General assumpsit 
will not lie on a contract of record, nor on those statutory, official, 
and customary obligations other than. to pay a definite amount of 
money. 43 

(II.) When Action Will Lie.— (A.) Express Contract Performed Except 
to Pay Money. — Indebitatus assumpsit in original form or on the com- 
mon counts, will lie for the recovery of a definite amount of 
money due by express contract, if all the other terms of the contract 
are performed, for the contract creates a debt and the law raises an 
assumpsit on the creation of every simple debt; the buyer's words 
of agreement not only operates as a grant, but also import a promise. 44 



43. 2 Har. L. Rev. 64; Metropolitan 
E. Co. v. Dist. of Columbia, 132 U. S. 
1, 10 Sup. Ct. 19, 33 L. ed. 231. 

The common counts do not lie for 
breach of implied warranty. Austin v. 
Beall (Ala.), 52 So. 657; Walker v. T. 
& G. Forbes, 25 Ala. 139, 60 Am. Dec. 
498; Sanitary Dist. of Chicago v. Mc- 
Mahon, 110 111. App. 510. 

One should declare specially against 
a surety where his character appears 
on the face of the instrument. Butler 
v. Rawson, 1 Denio (N. Y.) 105. 

44. With the modern conceptions of 
contract which are the outgrowth of 
the development of the consensual con- 
tract it is hard to conceive of the 
theorv of permitting the action of 
indebitatus assumpsit in the case stated 
in the proposition. Why was not the 
suit directly on the promise made in 
creating the debt, alleging the benefit 
to the promisor as the consideration? 
Because this field had already been 
preempted by the action of debt. Spe- 
cial assumpsit knew no consideration 
other than the detriment to the 
promisee. Debt had already been al- 
lowed for the recovery of a definite 
amount of money when quid pro quo 
had been given. The promise in ques- 
tion, therefore, created a debt, and 
special assumpsit would not lie there- 
on. The only way assumpsit was intro- 
duced into this territory was by the 
action on the case in the nature of 
debt. This was first 'allowed where 
there was an express promise to pay 
the precedent debt, and then it was 
allowed on the precedent debt without 
such promise because of the fiction that 
the law created the promise. The bi- 
lateral contract, after it has become 
executed on one side, may easily create 
a debt, so that nothing is more natural 

vol m 



than that indebitatus should be held 
to lie both where the debt is created at 
once and where it is created only after 
part performance of a bilateral con- 
tract on which special assumpsit would 
also lie. U. S. — Bank of Columbia v. 
Patterson's Admr., 7 Cranch 299, 3 L. 
ed. 351; Holloway & Bro. v. White- 
Dunham Shoe Co., 151 Fed. 216, 80 C. 
C. A. 568, 10 L. R. A. (N. S.) 704; 
Dawes & Co. v. Peebles' Sons, 6 Fed. 
856; Fontaine v. Aresta, 2 McLean 127, 
9 Fed. Cas. No. 4,905; Ames v. LeRue, 
2 McLean 216, 1 Fed. Cas. No. 327. 
Ala.— Stafford v. Sibley, 106 Ala., 189, 
17 So. 324; Beadle v. Graham's Admr., 
66 Ala. 99; Darden v. James, 48 Ala. 
33; Dukes v. Leowie, 13 Ala. 457. 
Ark.— Bertrand v. Byrd, 5 Ark. 651. 
Conn. — Canfield v. Merrick, 11 Conn. 
425. Del.— Massey v. Greenbaum Bros., 
5 Penne. 20, 58 Atl. 804; Hurlock v. 
Murphy, 2 Houst. 550. Ga. — Dobbins 
v. Pyrolusite M. Co., 75 Ga. 450; Han- 
cock v. Ross, 18 Ga. 364. 111.— Olcese 
v. Mobile F. & T. Co., 211 111. 539, 71 
N. E. 1084; Mc Arthur Bros. Co. v. 
Whitney, 202 111. 527, 67 N. E. 163; 
Sands v. Potter, 165 111. 397, 46 N. E. 
282, 56 Am. St. Rep. 253; First Nat. 
Bank v. Hart, 55 HI. 62; Thomas v. 
Caldwell, 50 HI. 138; Leach & Son v. 
Alphons Custodis & C. Co., 110 HI. App. 
338; Grand v. Chicago Daily News Co., 
92 HI. App. 129. Ind.— Brown v. Perry, 
14 Ind. 32; Russell v. Brandham, 8 
Blackf. 277. la.— Buford & Co. v. Funk, 
4 Greene 493. Kan. — Emslie. v. City of 
Leavenworth, 20 Kan. 562, code. Ky. 
Scott v. Messick, 4 T. B. Mon. 535; 
Cochran v. Tatum, 3 T. B. Mon. 404. 
Md — Young v. Boyd, 107 Md. 449, 69 
Atl. 33; Walsh v. Jenvev, 85 Md. 240, 
36 Atl. 817; Fairfax Forrest M. & M. 
Co. v. Chambers, 75 Md. 604, 23 Atl. 



ASSUMPSIT 



197 



Indebitatus assumpsit will lie in the above case whether the sum speci- 
fied is payable in money or in specific goods, for upon failure to de- 
liver the goods promised, the obligation is converted into a money 
obligation. 45 Where an express contract contains nothing more than 



1024. Mass. — Tebbetts v. Pickering, 5 
Cush. 83, 51 Am. Dec. 48; Felton v. 
Dickinson, 10 Mass. 287. Mich. — Nicol 
v. Fitch, 115 Mich. 15, 72 N. W. 988, 
69 Am. St. Rep. 542; Nugent v. Teach- 
out, 67 Mich. 571, 35 N. W. 254. 
Miss.— New Orleans, etc. R. Co. v. 
Pressley, 45 Miss. 66. Mo. — Moore v. 
Gans & Sons Mfg. Co., 113 Mo. 98, 20 
S. W. 975; Mansur v. Botts, 80 Mo. 
651; Wilson v. Wilson, 106 Mo. App. 
501, 80 S. W. 711. N. H— Hale v. 
Handy, 26 N. H. 206. N. J.— Risley v. 
Beaumont, 71 N. J. L. 372, 59 Atl. 145. 
N. Y — Hurst v. Litchfield, 39 N. Y. 
377; Hosley v. Black, 28 N. Y. 438; 
Farron v. Sherwood, 17 N. Y. 227 (code 
does not change common law rule) ; 
Peltier v. Sewall, 12 Wend. 386. Pa.— 
McManus v. Cassidy, 66 Pa. 260; Ed- 
wards v. Goldsmith, 16 Pa. 43; Kelly v. 
Foster, 2 Binn 4. R. I. — McDcrmott 
v. Wilhelmina etc. Soc, 24 R. I. 527, 
54 Atl. 58. Tenn. — Blackmore v. Wood, 

3 Sneed 470; Sublett v. McLin, 10 
Humph. 181; Allen v. McNew, 8 Humph. 
46. Vt. — Hersey v. Northern Assur. 
Ct>., 75 Vt. 441, 56 Atl. 95; Bradley v. 
Phillips, 52 Vt. 517. Va.— Baltimore & 
O. R. Co. v. Polly, 14 Gratt. 447; Brown 
v. Ralston, 9 Leigh 532. W. Va.— Lord 
v. Henderson, 65 W. Va. 321, 64 S. E. 
134; Moore v. Supervisors of Wetzel 
County, 18 W. Va. 630. Eng.— Studdy 
v. Sanders, 2 D. & R. 347, 16 E. C. L. 
93; Streeter v. Horlock, 1 Bihg. 34, 8 
E. C. L. 233; Pinchon 's Case, 9 Coke 
86b, 77 Eng. Reprint 859; Slade 's Case, 

4 Coke 92b, 76 Eng. Reprint 1074. 
The count for work and labor will 

not lie when there is a special con- 
tract, though it has been executed by 
the plaintiff. O'Connor v. Dingley, 26 
Cal. 11. 

The common counts are founded on 
the implied promises to pay money in 
consideration of antecedent debts. 
Parker & Son v. demons, 80 Vt. 521, 68 
Atl. 646. 

The acts of 1896 changed the com- 
mon law in Vermont so that indebitatus 
assumpsit will lie to recover on an in- 
surance policy. Hersey v. Northern 
Assur. Co., 75 Vt. 441, 56 Atl. 95. 



In a suit in indebitatus assumpsit 
on a contract performed, except for the 
payment of money, evidence of value is 
iuudmissible. Edwards v. Goldsmith, 
16 Pa. 43; Baltimore & O. R. Co. v. 
Polly, 14 Gratt. (Va.) 447. 

The common counts, e. g., money 
lent, money paid at request, and money 
had and received by defendant to 
plaintiff's use, will, in America, gen- 
erally lie on a bill of exchange or a 
promissory note. This resulted from 
the extension of debt into the field of 
the law merchant. 111. — Lane v. Adams, 
19 111. 167. Mass. — Tebbetts v. Picker- 
ing, 5 Cush. 83, 51 Am. Dec. 48. N. Y.— 
Smith V. Smith, 2 Johns. 235, 3 Am. 
Dec. 410. 

General assumpsit will not lie on a 
collateral guaranty for it creates no 
debt, but it will lie if the undertaking 
is original. HI. — Power v. Rankin, 114 
111. 52, 29 N. E. 185; Runde v. Runde, 
59 111. 98; Adams v. Westlake, 92 111. 
App. 616. Md.— Elder v. Warfield, 7 
Har. & ■ J. 391. N. Y— Northrup V. 
Jackson, 13 Wend. 85. 

45. Ark. — Peay v. Ringo, 22 Ark. 
68. 111.— McKinnie v. Lane, 230 111. 
544, 82 N. E. 878, 120 Am. St. Rep. 338. 
See Meyers v. Schemp, 67 111. 469. 
Md.— Marshall v. McPherson, 8 Gill & 
J. 333; Lyles v. Lyles' Exrs., 6 Har. & 
J. 273. Mo— St. Louis F. D. Ins. Co. 
v. Soulard, 8 Mo. 665. N. Y.— Taplin v. 
Packard, 8 Barb. 220. Tenn.— Vance 'a 
Admr. v. Jones, Peck 328. Tex.— 
Short v. Abernathy, 42 Tex. 94. Vt. 
Wilkins v. Stevens, 8 Vt. 214. Wis.— 
Bradley v. Levy, 5 Wis. 400. 

Some courts hold that the plaintiff 
in such case should declare specially. 
Ala. — Nesbitt V. Ware & McClanahan, 
30 Ala. 68. Ind.— Carlisle v. Dunn, 5 
Blackf. 605. Ky. — Sparks v. Simpson's 
Admr., 3 J. J. Marsh. -110; Spratt v. 
M 'Kinney. 1 Bibb 595. N. H— Ranlett 
v. Moore, 21 N. H. 336. Va.— Brooks v. 
Scott's Exr., 2 Munf. 344. 

When a special contract to pay rent 
in repairs is proven, there cannot be 
a recovery in quantum meruit. Bald- 
win v. Lessner, 8 Ga. 71. 

VoL m 



198 



ASSUMPSIT 



the law would imply, the plaintiff has his option to declare specially 
or in general assumpsit. 46 

(B.) Inferred Contracts. — General assumpsit, in the form of the 
quantum meruit or quantum valebat counts, will lie for the recovery of 
damages for the breach of a promise implied in fact to pay as much 
as the plaintiff reasonably deserves for goods or services rendered at 
request. 47 

(C.) Quasi-Contracts Generally.<8_ (i.) Money Laid Out at Bequest or in 
Doing What Another Is Legally Obliged to "Do.— Indebitatus assumpsit, in 
the form of a count for money paid for defendant's use will 
lie to recover the amount of money laid out by one person for 
another at the latter 's request, 49 or when the payment is necessary for 
the former's protection, 50 or when one does what another is legally 
obliged to do and the latter subsequently approves of the same. 61 

(2.) Benefits Obtained by Fraud or Appropriation. — Indebitatus assumpsit, 
in the form of a count for money had and received by the de- 
fendant to the plaintiff's use, will lie to recover damages against a 
wrongdoer who obtains benefits by his tortious act, either when he con- 
verts money, 52 or when he converts goods and by a sale receives 



46. Ind. — Scholz v. Schneck's Es- 
tate, 91 N. E. 730. Me.— Davis v. 
Smith, 79 Me. 351, 10 Atl. 55. N. H.— 
Sanburn v. Emerson, 12 N. H. 57. N. 
J.— Princeton & K. T. Co. v. Guliek, 16 
N. J. L. 161. 

47. Ala. — Jonas v. King, 81 Ala. 
285, 1 So. 591; Aikin v. Bloodgood, 12 
Ala. 221. Colo.— Ford v. Kockwell, 2 
Colo. 376. Conn. — Cunningham v. 
Delohery Hat Co., 74 Atl. 881. Del.— 
Kichards v. Richman, 5 Penne. 558, 64 
Atl. 238. Ind.— Board of Comrs. v. 
Gibson, 158 Ind. 471, 63 N. E. 982. 
Me. — Rumford Falls Boom Co. r. Rum- 
ford Falls P. Co., 95 Me. 186, 49 Atl. 
876. Md — Gambrill v. Schooley, 89 
Md. 546, 43 Atl. 918. Mass.— Hobbs v. 
Massosoit Whip Co., 158 Mass. 194, 33 
N. E. 495. Mich. — Chapman v. Dease, 
34 Mich. 375. N. H— Fogg v. Ports- 
mouth Atheneum, 44 N. H. 115, 82 Am. 
Dec. 189. Pa. — McCullough v. Ford 
Nat. Gas. Co., 213 Pa. 110, 62 Atl. 521. 

A promise implied in fact is classi- 
fied as a true contract, and not as a 
quasi-contract. Yet the action of spe- 
cial assumpsit does not lie thereon for 
want of an express promise. Debt can- 
not be maintained thereon, for the 
amount is not liquidated. Hence, for 
centuries at the common law there was 
no common law action whatever, and 
no recovery was possible until the ac- 
tion of general assumpsit (not special 

vol. m 



assumpsit as we should have expected) 
was extended to cover this class of 
cases. The obligation did not resemble 
a strict debt so much as it did the ob- 
ligation enforced by speeial . assumpsit, 
so in order to bring the new doctrine 
into harmony with the accepted theory 
of consideration, it was at first said 
that the promise was by fiction coupled 
with the prior request, but when the 
promise implied in fact was fully un- 
derstood this was found not to be 
necessary. 2 Har. L. Rev. 58-62. 

48. The common counts are appli- 
cable to every case where money (or 
goods) have been received which in 
equity and good conscience ought to 
be refunded. Thompson v. Thompson, 
5 W. Va. 190. 

49. Fry v. Talbott, 106 Md. 43, 66 
Atl. 664; Brown v. Fales, 139 Mass. 
21, 29 N. E. 211. 

50. Ala. — Smith v. McGehee, 14 Ala. 
404. CaL — Leeke v. Hancock, 76 Cal. 
127, 17 Pac. 937. 111.— City of Chica- 
go v. Pittsburg, etc., R. Co., 146 111. 
App. 403. Me.— Todd v. Tobey, 29 
Me. 219. Eng.— See Stokes v. Lewis, 
1 T. R. 20, 99 Eng. Reprint 949. 

51. Gleason v. Dyke, 22 Pick. 
(Mass.) 390. 

52. U. S. — Gibson v. Stevens, 3 Mc- 
Lean 551, 10 Fed. Cas. No. 5.401. Ala. 
Pteiner v. Clisby, 103 Ala. 181, 15 So. 
612. 111.— McDonald v. Brown, 16 111. 



ASSUMPSIT 



199 



money therefor; 53 and indebitatus assumpsit, in the form of a count 
for goods sold and delivered, will lie to recover damages for the tor- 
tious taking of goods. 54 Under such circumstances the person in- 
jured waives his tort action and counts on a fictitious sale which the 
defendant is not in a position to deny. Recovery may be had though 



32. Me. — renobscot B. Co. v. Mayo, 

67 Me. 470, 24 Am. Rep. 45; Howe v. 

Clancy, 53 Me. 130. Mass. — Boston, 

etc., Corp. v. Dana, 1 Gray 83. N. J. 

Westcolt V. Sharp, 50 IN'. J. L. 392, 

13 Atl. 243. N. Y.— Bothschild V. 

Mack, 115 N. Y. 1, 21 N. E. 72(5, code. 

Ore. — Hornefius v. Wilkinson, 51 Ore. 

45, 93 Pac. 474. Vt — Elwell v. Martin, 

32 Vt. 217. Wis. — Western Assur. Co. 

V. Towle, 65 Wis. 247, 26 N. VV. 104, 

code. Eng. — Neate v. Harding, 6 Exch. 

349. 

53. U. S.— Steam Stone Cutter Co. 

v. Sheldons, 21 Blatchf. 260, 15 Fed. 

608. Ala.— Bradfield v. Patterson, 106 
Ala. 397, 17 So. 536; Smith v. Jern- 

gan, 83 Ala. 256, 3 So. 515; Upchurch 
f. Xorsworthy, 15 Ala. 705. Ark. — 
Chamblee v. McKenzie, 31 Ark. 155; 
Hudson v. Gilliland, 25 Ark. 100. Del. 
Hutton v. Wetherald, 5 Harr. 38. 
Ga. — Southern It. Co. v. Born Steel 
Range Co., 122 Ga. 658, 50 S. E. 488. 
IU.— Crell v. Kirkham, 47 111. 344. 
Ind. — James v. Gregg, 17 Ind. 84. Ky. 
Daniel v. Daniel, 9 B. Mon. 195; 
Guthrie v. Wickliffe, 1 A. K. Marsh. 
83. Me. — Quimby v. Lowell, 89 Me. 
547, 36 Atl. 902; Shaw v. Coffin, 58 
Me. 254, 4 Am. Eep. 290. Mass.— 
Gilmore v. Wilbur, 12 Pick. 120, 22 Am. 
Dec. 410. Mich. — Nelson v. Kilbride, 
113 Mich. 637, 71 N. W. 1089. Miss.— 
Isaacs v. Hermann & Moss, 49 Miss. 
449. N. H. — Woodbury v. Woodbury, 
47 N. H. 11, 90 Am. Dec 555; White 
v. Brooks, 43 N. H. 402. N. Y.— liar- 
pending v. Shoemaker, 37 Barb. 270; 
Cobb v. Dows, 9 Barb. 230. N. C— 
Olive v. Olive, 95 N. C. 485; Wall v. 
Williams, 91 N. C. 477. Pa.— Gray v. 
Griffith, 10 Watts 431. Vt.— Kidney 
v. Persons, 41 Vt. 386, 98 Am. Dec. 
595; Phelps v. Conant, 30 Vt. 277. W. 
Va. — Maloney V. Barr, 27 W. Va. 381. 
Wis. — Elliott v. Jackson, 3 Wis. 649. 
Money had and received will lie 
where the goods tortiously taken are 
manufactured into a different article 
and in that state sold for money. Gil- 
more v. Wilbur, 12 Pick. (Mass.) 120, 
22 Am. Dec. 410. 



An infant may avoid his special 
contract given for a settlement of a 
tort, but he is liable on the original 
cause of action in indebitatus assump- 
sit for money received. Shaw v. Cof- 
fin, 58 Me. 254, 4 Am. Eep. 290. See 
Baker v. Huddleston, 3 Baxt. (Tenn.) 
1. 

A plaintiff cannot waive his tort ac- 
tion and sue for money had and re- 
ceived when the defendant merely ex- 
changes the goods taken for other 
goods. Fuller v. Duren, 36 Ala. 73, 
76 Am. Dec 318; Kidney v. Persons, 
41 Vt. 386, 98 Am. Dec. 595. 

Money "had and received will lie by 
a depositary against the maker of a 
note who takes it from his possession. . 
Penobscot E. Co. v. Mayo, 60 Me. 306. 
54. U. S.— Phelps v. Church, 99 Fed. 
683, 40 C. C. A. 72. Ark.— Johnson & 
Kemby v. Reed, 8 Ark. 202 (see later 
cases). Cal. — Chittenden v. Pratt, 89 
Cal. 178, 26 Pac. 626; Eoberts v. Ev- 
ans, 43 Cal. 380; Fratt v. Clark, 12 
Cal. 89. ' Ga.— Harral V. Wright, 57 
Ga. 484. 111.— City of Elgin v. Jos- 
lyn, 136 111. 525, 26 N. E. 1090; Toledo, 
W. & W. E. Co v. Chew, 67 111. 378. 
Mass. — Brown v. Holbrook, 4 Gray 102. 
Mich. — Brown v. Foster, 137 Mich. 35, 
100 N. W. 167 (code); Castner v. Dar- 
by, 128 Mich. 241, S7 X. W. 199 (code); 
Williams v. Eogers, 110 Mich. 418, 68 
N. W. 240; McLaughlin v. Salley, 46 
Mich. 219, 9 N. W. 256. Miss.— Evans 
v. Miller, 58 Miss. 120, 38 Am. Eep. 
313. Mo. — Johnson v. Strader, 3 Mo. 
359. Mont. — Galvin v. Mac M. & M. 
Co., 14 Mont. 508, 37 Pac. 366. N. H. 
Hill v. Davis, 3 N. H. 384. N. J.— 
Monre v. Richardson, 68 N. J. L. 305, 
53 Atl. 1032. N. Y— Terry v. Munger, 
121 N. Y. 161, 24 N. E. 272, 18 Am. St. 
Rep. 803, 8 L. E. A. 216; McGoldrick 
r. Willits, 52 N. Y. 612; Eunyon v. 
Marclay, 54 Barb. 164; Beardsley v. 
Benders, 123 N. Y. Supp. 35, code. N. 
D.— Braithwaite '•• Akin, 3 N. D. 365, 
56 N. W. 133. Ohio. — Barker v. Cory, 
15 Ohio 9. Pa. — Prynr o. Morgan, 170 
Pa. 56S, 33 Atl. '.in; Satterlee v. Melick, 
76 Pa. 62. Tenn. — Whi taker v. Pos- 



Vol. m 



200 



ASSUMPSIT 



the wrongdoer is a bailee. 56 Some jurisdictions do not permit the 
count for goods sold and delivered for a tortious taking of goods, 
and there indebitatus assumpsit will not lie unless the goods have 
been resold. 50 

(3.) Benefits Obtained by Compulsion.- General assumpsit, in the form 
of a count for money had and received by the defendant to the 
plaintiff's use, will lie for money obtained by duress, 57 or undue in- 
fluence, 58 or where it is improperly exacted under compulsion of law, 



ton, 120 Tenn. 207, 110 S. W. 1019; 
Huffman v. Hughlett, 11 Lea 549. W. 
Va.— Walker v. Norfolk & W. R. Co., 
67 S. E. 722. Wis.— In re Heber's 
Will, 139 Wis. 472, 121 N. W. 328 
(code); Smith v. Schulenberg, 34 Wis. 
41; Norden v. Jones, 33 Wis. 600, 14 
Am. Rep. 782. Eng. — Smith v. Hod- 
son, 4 T. R. 211, 100 Eng. Reprint 
979; Russell v. Bell, 10 Mees. & W. 
340. 

The original owner may sue the per- 
son to whom goods converted have been 
resold. Smith v. Schulenberg, 34 Wis. 
41. 

Action for goods sold and delivered 
will not lie against a public officer 
taking property and selling it in good 
faith under color of lawful authority. 
Osborn v. Bell, 5 Denio (N. Y.) 370, 
49 Am. Dec. 275. 

Indebitatus assumpsit will lie in 
these jurisdictions though services of 
servants, etc., instead of goods are 
appropriated. Jones v. Buzzard, 

Hempst. 240, 13 Fed. Cas. No. 7,206a; 
Foster v. Stewart, 3 Moore & S. 191, 
105 Eng. Reprint 582; Lightly v. 
Clouston, 1 Taunt. (Eng.) 112. 

Action for goods sold and delivered 
will not lie where the wrongdoer dam- 
ages personal property but does not 
intend to claim it as his own. Rey- 
nolds Bros. v. Padgett, 94 Ga. 347, 21 
S. E. 570. 

To recover in indebitatus assumpsit 
for goods sold there must be fraud or 
unfair dealing or other circumstance 
from which an implication may arise. 
There cannot be a recovery for a de- 
ficiency in lumber when defendant took 
logs to saw into lumber. Satterlee v. 
Melick, 76 Pa. 62. 

55. Cal. — Lehmann v. Schmidt, 87 
Cal. 15, 25 Pac. 161. Del.— Guthrie v. 
Hyatt, 1 Har. 446. Ga.— Bates v. Big- 
by, 123 Ga. 727, 51 S. E. 717; Farmers' 
& M. Bank v. Bennett & Co., 120 Ga. 

vol m 



1012, 48 S. E. 398; Cooper v. Berry, 

21 Ga. 526, 68 Am. Dec. 468. Ill — 
Ives v. Hartley, 51 111. 520; Gentle v. 
Stephens, 87 111. App. 190; Farson v. 
Hutchins, 62 111. App. 439. Ind.— 
Babb v. B.'bb, 89 Ind. 281; Cox v. Rey- 
nolds, 7 Ind. 257; Smith v. Stewart, 
5 Ind. 220. N. H — Seavey v. Dana, 
61 N. H. 339; Graves v. Ticknor, 6 N. 
H. 537. N. J.— Mott v. Pettit, 1 N. 
J. L. 344. N. Y— Berly v. Taylor, 5 
Hill 577; Beardslee V. Richardson, 11 
Wend. 25, 25 Am. Dec. 596. Pa — 
Zell v. Dunkle, 156 Pa. 353, 27 Atl. 
38; Michener v. Dale, 23 Pa. 59. S. 
C.-Tindall v. McCarthy, 44 S. C. 487, 

22 S. E. 734. Tenn.— Ott v. Whitworth, 
8 Humph. 494. Vt, — Scott v. Lance, 
21 Vt. 507. Va, — Lawson's Exr. v. 
Lawson, 16 Gratt. 230, 80 Am. Dec. 
702. 

Book account will not lie for money 
which bailee fails to deliver. Drury 
v. Douglas, 35 Vt. 474. See Bradfield 
v. Patterson, 106 Ala. 397, 17 So. 536. 

56. Ala. — Miller v. King, 67 Ala. 
575. Ark.— Bowman v. Browning, 17 
Ark. 599. Ga.— Barlow v. Stalworth, 
27 Ga. 517. Me. — Quimby v. Lowell, 
89 Me. 547, 36 Atl. 902. Miss.— Mhoon 
v. Greenfield, 52 Miss. 434. See Jami- 
son v. Moon, 43 Miss. 598. Pa. — Gray 
v. Griffith, 10 Watts 431. Vt.— Win- 
chell v. Noyes, 23 Vt. 303. 

One cannot waive his tort and sue 
in indebitatus assumpsit if the effect 
is to give jurisdiction to a court which 
otherwise would not have it. Finlay v. 
Bryson, 84 Mo. 664. 

Quantum meruit will lie to recover 
value of services rendered by a free 
negro held by the defendant as a slave. 
Hickam v. Hiekam, 46 Mo. App. 
496; Peter v. Steel, 3 Yeates (Pa.) 
250. 

57. Willis Contracts, 14, 15. 

58. Willis Contracts, 13, 14. 



ASSUMPSIT 



201 



or as a condition precedent to the performance of a public duty. 5 * 
(4.) Benefits Conferred in Reliance on Unenforcible Contract. — General 
assumpsit, in some of its forms, will lie for recovery for benefits 
which have been conferred in reliance on a contract which is de- 
viated from by consent, 00 or which is substantially performed, though 
not strictly complied with," 1 or which has been mutually rescinds 
or which has been terminated by the happening of a condition, 03 
or whose performance is prevented by the default of the other party, * 

64. U. S— Ankeny v. Clark, 148 U. 
S. 345, 13 Sup. Ct. 617, 37 L. ed. 475; 
Conrad v. Conrad, 4 Dall. 130, 1 L. 
ed. 771; Michigan Y. & P. Co. v. Busch, 
143 Fed. 929, 75 C. C. A. 109. Ark.— 
Lafferty v. Day, Williams & Co., 7 Ark. 
258. Cal.— Rose v. Foord, 96 Cal. 152, 
30 Pac. 1114; Reynolds v. Jourdan, 6 
Cal. 108. Conn. — Lyon v. Annable, 4 
Conn. 350. Ill— Booker v. Wolf, 195 
111. 365, 63 N. E. 265; Guerdon v. Cor- 
bett, 87 111. 272; Sanger v. Chicago, 65 
111. 506; Selby v. Hutchinson, 9 111. 
319; Neagle v. Herbert, 73 111. App. 
17. Ind. — Barickman v. Kuykendall, 
6 Blackf. 21. la.— Dibol v. W. & F. H. 
Minott, 9 Iowa 403. Ky.— Morford v. 
Ambrose, 3 J. J. Marsh, 688. La. — 
Brown v. Snow, 14 La. Ann. 848. Me. 
Wright v. Haskell, 45 Me. 489. Md. 
Bull v. Shuberth, 2 Md. 38. Mass.— 



59. U. S.— Curtis v. Fiedler, 2 
Black 461, 28 L. ed. 273. Ala.— Dun- 
can v. Ware's Exrs., 5 Stew. & P. 119, 
24 Am. Dec. 772. Conn. — Johnson v. 
Norwich, 31 Conn. 407. 

60. Wright v. Morris, 15 Ark. 444; 
Cox v. McLaughlin, 76 Cal. 60, 18 Pac. 
100, 9 Am. St. Rep. 164; Lacy Mfg. Co. 
v. Los Angeles G. & E. Co., 12 Cal. 
App. 37, 106 Pac. 413. 

61. Conn. — Pinches V. Swedish 
Church, 55 Conn. 183, 10 Atl. 264. 111. 
Shepard v. Mills, 173 111. 223, 50 N. 
E. 709; Munger v. Towslee, 38 111. 40. 
Md.— Brooke v. Quynn, 13 Md. 379. 
Mass. — Snow v. Inhab. of Ware, 13 
Mete. 42; Hayward v. Leonard, 7 
Pick. 181, 19 Am. Dec. 268. Mich- 
Andre v. Hardin, 32 Mich. 324. Mo — 
Cann v. Rector, 111 Mo. App. 164, 85 S. 
W. 994. N. Y.— Ladue v. Seymour, 24 



Wend. 60. Ore. — Todd V. Huntington, : Canada v. Canada, 6 Cush. 15. Mich. 



13 Ore. 9. 

62. U. S. — Chesapeake & O. Canal 
Co. v. Knapp, 9 Pet. 541, 9 L. ed. 222; 
Columbus Safe-Dep. Co. v. Burke, 88 
Fed. 630, 32 C. C. A. 67; Dawes & Co. 
v. Peebles' Sons, 6 Fed. 856. Ala.— 
Kirkland v. Oates, 25 Ala. 465. Ark. 
Prince, Chace & Co. v. Thomas, 15 
Ark. 378. 111.— -Catholic Bishop v. 
Bauer, 62 111. 188. Ind.— Barber v. 
Lyon, 8 Blackf. 215. la.— Stewart v. 
Craig, 3 Greene 505. N. M. — Daly v. 
Bernstein, 6 N. M. 380, 28 Pac. 764. 
Ohio.— Fitch v. Sargeant, 1 Ohio 352. 
Pa. — Crossgrove v. Himmelrich, 54 Pa. 
203. S. C.-Suber v. Pullin, 1 S. C. 
273. Tenn. — Allen v. McNew, 8 
Humph. 46. Wis. — Mann v. Stowell, 

3 Pinn. 220. Eng — Towers v. Barrett, 
1 T. R. 133, 99 Eng. Reprint 1014. 

63. Mich. — Redding v. Lamb, 81 
Mich. 318, 45 N. W. 997. N. J.— Sher- 
win v. Sternberg, 77 N. J. L. 117, 71 
Atl. 117;Weart v. Hoagland's Admr., 
22 N. J. L. 517; Glover v. Collins, 18 
N. J. L. 232. N. Y — Jones v. Judd, 

4 N. Y. 411. Vt.— Groot v. Story, 41 
Vt 533. 



Township' of Buckeye r. Clark, 90 
Mich. 432, 51 N. W. 528; Aldine Mfg. 
Co. v. Barnard, 84 Mich. 632, 48 N. W. 
280; Moonev v. York Iron Co., 82 Mich. 
263, 46 N.W. 376; Mitchell v. Scott, 
41 Mich. 108, 1 N. W. 968. Mo.-.M,- 
Culloch v. linker, 47 Mo. 401. N. H. 
Carroll v. Giddings, 58 N. H. 333. 
Tex. — Ra vera ft v. Johnston, 41 Tex. 
Civ. App. 406, 93 S. W. 237. Vt.— 
Chamber lain v. Scott, 33 Vt. 80; Derby 
v. Johnson, 21 Vt. 17. W. Va.— 
Lipscomb v. Lipscomb, 66 W. Va. 55, 
66 S. E. 8. Eng.— Hesketh r. Blan- 
chard, 4 East 144, 102 Eng. Reprint 
785. 

But a plaintiff cannot sue in gen- 
eral assumpsit for benefits conferred 
pursuant to an express contract when 
he himself is guilty of breach, un- 
less such breach is caused by sickness 
or the other party waives the default. 
Ala. — Hunter r. WaMr.ui, 7 Ala. 7.",:: ; 
Givhan v. Dailey's Admx., 4 Ala. 336. 
111. — Wilderman v. Pitts, 29 111 App. 
528. Me.— llayden v. Inhab. of Madi- 
son, 7 Me. 76. Mass. — Stark v. Parker, 
2 Pick. 267, 13 Am. Dec. 425. Pa.— 

Vol. m 



202 



ASSUMPSIT 



or which is void for mistake, etc., 65 or which is avoided for incapacity 
of party, 60 or unenforcible because of not fulfilling the requirements 
of the statute of frauds. 07 Quantum meruit will lie for services re- 
ceived under such reliance, money had and received for money paid, 
quantum valcbat for .goods furnished, etc. 

(5.) Benefits Conferred by Mistake of Fact.— Indebitatus assumpsit, in 
the form of a count for money had and received, will lie for money 
paid under a mistake of fact. 08 

(III.) Classifications- (A.) Indebitatus Assumpsit — This remedy, gen- 
erally concurrent with debt, embraces : — 

(1.) Money Counts.— (a.) Money Paid for defendant's use, which lies 
when money has been laid out at request or when plaintiff is un- 
der legal liability to pay the same for defendant or in doing what 
another is legally obliged to do and the act is ratified. 70 

(b.) Money Bad and Eeceived by Defendant to Plaintiff's Use.— This is an 
action of very wide application and lies whenever the defendant has 
money in his possession which in equity and good conscience belongs 
to the plaintiff. 71 



Algeo v. Alger,, 10 Serg. & R. 235. 
Contra— U. S— Michigan Y. & P. 
Co. v. Busch, 143 Fed. 929, 75 C. C. A. 
109. Mich. — Williams v. Crane, 153 
Mich. 89, 16 N. W. 554. Neb.— West 
v. Van Pelt, 34 Neb. 63, 51 N. W. 
313. N. H— Britton v. Turner, 6 N. 
H. 481, 26 Am. Dec. 713. 

65. Willis Contracts 20. 

General assumpsit will lie against 
a corporation for benefits treceived, 
though the act is ultra vires. U. S. — 
De La Vergne, etc, Mach. Co. v. Ger- 
man Sav. Inst., 175 U; S. 40, 20 Sup. 
Ct. 20, 44 L. ed. 65. Cal. — Brown v. 
Board, etc., 103 Cal. 531, 37 Pac. 503. 
Mich. — Cicotte v. County of Wayne, 
59 Mich. 509, 26 N. W. 686; Dono- 
van V. Halsey, Fire Engine Co., 58 
Mich. 38, 24 N. W. 819; Endriss v. 
County of Chippewa, 43 Mich. 317, 
5 N. W. 632. N. Y— Dunn v. Rector, 
14 Johns. 118. N. C— Clowe v. Im- 
perial Pine Product Co., 114 N. C. 
304, 19 S. E. 153. Pa.— Overseers, etc., 
of N. W. v. Overseers of S. W., 3 
Serg. & R. 117. «. 0.— Waring v. 
Catawba Co., 2 Bay 109. Vt— Poult- 
ney v. Wells, 1 Aik. 180. 

66. Willis Contracts, 19. 

67. Booker v. Wolf, 195 111. 365, 
63 N. E. 265. 

68. Ala. — Moore v. Smith, 19 Ala. 
774. Conn. — Sage v. Hawley, 16 Conn. 
106, 41 Am. Dec. 128. Me.— Gooding 

vol m 



v. Morgan, 37 Me. 419. Md — Scott v. 
Leary, 34 Md. 389. Mass. — Haven v. 
Foster, 9 Pick. 112, 19 Am. Dec. 353. 
Miss. — Bank of Louisiana v. Bullard, 
7 How. 371. N. C. — Mitchell v. Walk- 
er, 30 N. C. 243. Tend— Wilson v. 
Greer, 7 Humph. 513. 

See Bailey v. Railroad Co., 22 Wall. 
(U. S.) 604, 22 L. ed. 840. 

69. For the various applications of 
these counts, see supra, I, C, 3, c, (II). 

Indebitatus assumpsit is founded up- 
on what the law terms an implied 
promise on the part of the defendant 
to pay what in good conscience he is 
bound to pay to the plaintiff. Where 
the case shows that it is the duty of 
the defendant to pay, the law imputes 
a promise to fulfil that obligation; 
but the law never implies a promise to 
pay unless some duty creates such an 
obligation, and more especially it 
never implies a promise to do an act 
contrary to duty or contrary to law. 
Curtis v. Fiedler, 2 Black 478 [67 U. 
S. XVII. 276]; Cary v. Curtis, 3 How. 
236; Philadelphia v. Collector, 5 Wall. 
732 [72 U. S. XVIII. 617]; Elliott v. 
Swartwout, 10 Pet. 150; Bend v. Hoyt, 
13 Pet. 267." Bailey v. New York 
Tent. & H. R. R. Co., 22 Wall. (U. S.) 
604, 641, 22 L. ed. 840, per Clifford, J. 

70. 1 Chit. PI. 340. 

71. 1 Chit. PI. 340-342, and the fol- 
lowing cases: U. S. — Gaines v. Miller, 



ASSUMPSIT 



203 



(c) Money lent and advanced, which lies whenever money is loaned 
to defendant, though delivered to a third person. 72 

(d.) Interest, which in general lies for the recovery of interest at 
the legal rate, whatever the cause of action, if there exists a claim for 



111 U. S. 395, 4 Sup. Ct. 426, 28 L. ed. 
406; Nash v. Towne, 5 Wall. 689, 18 
L. ed. 527. Cal. — Trower v. San Fran- 
cisco, 152 Cal. 479, 92 Pac. 1025, 15 
L. B. A. (N. S.) 183 (annotated case), 
fees received by an official under an 
unconstitutional statute. Ga. — Butts 
County v. Jackson Bkg. Co., 129 Ga. 
801, 60 S. E. 149, 15 L. B. A. (N. S.) 
567 (annotated case), where the coun- 
ty was not authorized to borrow. 
Kan. — Simmonds v. Long, 80 Kan. 
155, 101 Pac. 1070, 23 L. B. A. (N. S.) 
553 (annotated case), where agents re- 
ceived money on a contract which prin- 
cipal refused to carry out. Miss. — 
O'Conley v. City of Natchez, 1 Smed. 
& M. 31, 40 Am. Dec. 87. N. Y.— 
Hess v. Fox, 10 Wend. 436. Okla — 
Allsman v. Oklahoma City, 21 Okla. 
142, 95 Pac 468, 16 L. E. A. (N. S.) 
511. S. C— Luther v. Wheeler, 73 S. 
C. 83, 52 S. E. 874, 4 L. E. A. (N. 
S.) 746, money loaned to a municipal- 
ity corporation which had no power to 
borrow. 

"The action of assumpsit for money 
had and received, it is said by Lord 
Mansfield (Burr., 1012, Moses v. Mac- 
farlen), will lie in general whenever 
the defendant has received money 
which is the property of the plaintiff, 
and which the defendant is obliged by 
the ties of natural justice and equity 
to refund. And by Buller, Justice, in 
Stratton v. Eastall (2 T. B. 370), 'that 
this action has been of late years ex- 
tended on the principle of its being 
considered like a bill in equity. And, 
therefore, in order to recover money 
in this form of action the party must 
show that he has equity and conscience 
on his side, and could recover in 
a court of equity.' These are the gen- 
eral grounds of the action as given 
from high authority. There must be 
room for implication as between the 
parties to the action, and the recov- 
ery must be ex equo et bono, or it 
can never be. If the action is to de- 
pend on the principles laid down by 
these judges, and especially by Buller, 
a case of hardship merely could 



scarcely be founded upon them; much 
less could one of injustice or oppres- 
sion, nor even one which arose from 
irregularity or indiscretion in the 
plaintiff's own conduct. So far as the 
liability of agents in this form of ac- 
tion appears to have been considered, 
the general rule certainly is, that the 
action should be brought against the 
principal and not against a known 
agent, who is discharged from liability 
by a bona fide payment over to his 
principal, unless anterior to making 
payment over he shall have had notice 
from the plaintiff of his right and of 
his intention to claim the money. 
The absence of notice will be an ex- 
culpation of the agent in every in- 
stance. . . . We have thus stat- 
ed, and will here recapitulate, the prin- 
ciples on which the action for money 
had and received may be maintained. 
They are these: 1st. Whenever the 
defendant has received money which 
is the property of the plaintiff, and 
which the defendant is obliged, by the 
ties of natural justice and equity, to 
refund. 2d. In the case of an agent, 
where such agent is not notoriously 
the mere carrier or instrument for 
transferring the fund, but has the 
power of retaining, and before he has 
paid over has received notice of the 
plaintiff's claim, and a warning not 
to part with the fund. 3d. Where 
there exists a privity between the 
plaintiff and the defendant." Cary v. 
Curtis, 3 How. (U. S.) 236, 11 L. ed. 
576, per Daniel, J. And see Nash v. 
Towne, 5 Wall. (U. S.) 6S9, 18 L. 
ed. 527. 

Contract Rescinded. — Money paid on 
such a contract may be recovered. 
Ankeny v. Clark, 148 U. S. 345, 13 
Sup. Ct. 617, 37 L. ed. 475; Chesapeake, 
etc, Canal Co. v. Knapp, 9 Pet. (U. S.) 
541. 9 L. ed. 222. 

72. 1 Chit. PI. 340. See U. S.— 
Mechanics' Bank v. Bank of Colum- 
bia, 5 Wheat. 326, 5 L. ed. 100. Conn. 
D<?an v. Mann, 28 Conn. 352. Ky. — 
Willoughby v. Spear's Admr., 4 Bibb 
397. 

VOL in 



204 



ASSUMPSIT 



damages for the loss of a right of pecuniary value as of a definite 
time. 73 

(e.) Account stated, which lies for a balance due when there is an 
acknowledgment by the defendant that a sum certain is due and also 
where arbitrators award a sum of money to be due unless the sub- 
mission is by bond, excepting against an infant. 74 

the contract has been executed. Har- 
riman v. Northern Securities Co., 197 
U. S. 244, 25 Sup. Ct. 493, 49 L. ed. 
739. 

Mistake of Facts. — Money paid un- 
der a mistake of fact may be recov- 
ered in this form of action on the 
theory that the consideration has 
failed. United States v. Barlow, 132 
U. S. 271, 10 Sup. Ct. 776, 33 L. ed. 
347, citing Kelly v. Solari, 9 Mees. & 
W. (Eng.) 54. 

See the title "Mistake." 

Mistake of Law. — For money so 
paid this action will not lie. Bodeau 
v. United States, 130 U. S. 439, 9 Sup. 
Ct. 579, 32 L. ed. 997. 

See the title "Mistake." 

Duress.— "It is settled by many au- 
thorities that money paid by a person 
to prevent an illegal seizzue of his 
person or property by an officer claim- 
ing authority to seize the same, or to 
liberate his person or property from 
illegal detention by such officer, may 
be recovered back in an action for 
money had and received, on the ground 
that the payment was compulsory, or 
by duress or extortion. Under this 
rule, illegal taxes or other public ex- 
actions, paid to prevent such seizure 
or remove such detention, may be re- 
covered back, unless prohibited by 
some statutory regulation to the con- 
trary." Lamborn v. Dickinson County 
Comrs., 97 U. S. 181, 24 L. ed. 926. 
See also March v. Bricklayers' & Plas- 
terers' Union No. 1, 79 Conn. 7, 63 
Atl. 291, 4 L. E. A. (N. S.) 1198; 
Kilpatrick v. Germania L. Ins. Co.. 
183 N. Y. 163, 75 N. E. 1124, 2 L. 
R. A. (N. S.) 574 (annotated case); 
and the title "Duress." 

Indebitatus assumpsit will not lie 
to collect interest due on a promissory 
note not due; there must be a sepa- 
rate count when the principal is recov- 
ered. Brooks v. Holland, 21 Conn. 388. 

74. Chit. PI. 343. U. S.— Wyman v. 
Fowler, 3 McLean 467, 30 Fed. Cas. 
No. 18,114. Conn.— Ashley v. Hill, 6 



73. Willis Damages; 87, 88. 

Dlegal Contract. — "Lord Mansfield, 
in Smith v. Bromley, 2 Doug. 696, n., 
as long ago as 1760, laid down the doc- 
trine, which has ever since been fol- 
lowed, in these words: 'If the Act be 
in itself immoral, or a violation of the 
general laws of public policy, both 
parties are in pari delicto, but where 
the law violated is calculated for the 
protection of the subject against op- 
pression, extortion and deceit, and 
the defendant takes advantage of the 
plaintiff's condition or situation, then 
the plaintiff shall recover. In thai 
case the plaintiff had given the defend- 
ant money to sign her brothers' bank- 
rupt certificate, and she was allowed 
to recover it back, the law prohibit- 
ing any creditor from receiving money 
for such a purpose. Whilst the gen- 
eral principle has been frequently rec- 
ognized, the application of it to par- 
ticular cases has been somewhat di- 
verse. Mr. Frere, in his note to Smith 
v. Bromley (supra) thus sums up the 
result of the cases: A recovery can 
be had, as for money had and received 
(1) where the illegality consists in 
the contract itself, and that contract 
is not executed — in such case there is 
a locus paenitentiae, the delictum is 
incomplete, and the contract may be 
rescinded by either party; (2) where 
the law that creates the illegality in 
the transaction was designed for the 
coercion of one party and the protec- 
tion of the other, or where the one 
party is the principal offender and the 
other only criminal from a constrained 
acquiescence, in such illegal conduct — 
in such case there is no parity of de- 
lictum at all between the parties, and 
the party so protected by the law, or 
so acting under compulsion, may, at 
any time resort to the law for his 
remedy, though the illegal transaction 
be completed." Thomas v. City of 
Richmond, 12 Wall. (U. S.) 349, 358, 
20 L. ed. 453, per Bradley, J. 

In Pari Delicto. — No recovery where 

vol in 



ASSUMPSIT 



205 



(2.) Debt Founded On.— (a.) Use and occupation, which was a statu- 
tory form of indebitatus assumpsit created by act of Parliament, and 
which will lie for the recovery of rent where the demise is not by deed 
if the relation of landlord and tenant exists, but will not lie against 
a mere trespasser. 75 

(b.) Board and Lodging.''* 

(c.) Goods Sold and Delivered. —This will lie where goods have been 
sold and actually delivered, though under a special contract if the 
promise is to pay in money and the credit has expired, 77 or where a 
tort action for goods converted is waived. 

(d.) Goods bargained and sold, which will lie where the defendant has 
purchased goods but refuses to accept the same provided the title has 
passed. 78 

(e.) Work, labor, service and materials, which will lie where services 
have been rendered under a special contract, if its terms have been 
wholly performed by the plaintiff, and the remuneration is to be in 
money, but not if not wholly performed by plaintiff though perform- 
ance is prevented by defendant. 79 



Conn. 246. HI.— Bedell v. Janney, 9 
111. 193; Throop v. Sherwood, 9 111. 
92. Mass. — Fanning v. Qhadwick, 3 
Pick. 420, 15 Am. Dee. 233. Mich — 
Gooding v. Hengston, 20 Mich. 439. 
Miss. — McCall v. Nave, 52 Miss. 494. 
Pa. — Tassey v. Church, 4 Watts & S. 
141. Vt. — Parker & Son v. demons, 80 
Vt. 521, 68 Atl. 646. Eng.— Foster v. 
Allanson, 2 T. R. 479, 100 Eng. Re- 
print 258. 

75. 2 Har. L. Rev. 377-380. U. S.— 
Bigby v. United States, 188 U. S. 
400, 23 Sup. Ct. 468, 47 L. ed. 519; 
Hill v. United States, 149 U. S. 593, 
13 Sup. Ct. 1011, 37 L. ed. 862; Lloyd 
v. Hough, 1 How. 153, 11 L. ed. 83. 
Ala.— Wilson v. Taylor, 148 Ala. 672, 
41 So. 824; Meaher v. Pomeroy, 49 Ala. 
146; Weaver v. Jones, 24 Ala. 420; 
Price v. Pickett, 21 Ala. 741. 111. — 
Hill v. Coal & M. Co., 103 111. App. 
41. Md.— Stockett v. Watkins, 2 Gill 
& J. 326, 20 Am. Dec. 438; Hoffar t'. 
Dement, 5 Gill 132, 46 Am. Dec. 628. 
Mass. — City of Boston v. Biney, 11 
Pick. 1, 22 Am. Dec. 353. N. H.— 
Hill v. Boutell, 3 N. H. 502. N. J.— 
Perrine v. Hankinson, 11 N. J. L. 181. 
Tenn. — Rhodes v. Crutchfield, 7 Lea 
518. Vt.-Bachop v. Hill, 54 Vt. 507. 
76. "Board and lodging" are in- 
cluded within the meaning of goods de- 
livered and services performed. Ber- 



kowsky v. Specter, 79 111. App. 215. 

77. Chit. PI. 338-339; Schutz v. 
Jordan, 141 U. S. 213, 11 Sup. Ct. 960, 
35 L. ed. 705; Leeds v. Burrows, 12 
East 1, 104 Eng. Reprint 1. 

78. Chit. PI. 339. 

79. Chit. PI. 339; Allen v. Jarvis. 
20 Conn. 38; Bishop v. Perkins, 19 
Conn. 300; Hall v. Cannon, 4 Harr. 
(Del.) 360. 

The right to recover depends "on 
the principle of general law that one 
who accepts the benefit of such serv- 
ices shall be held liable to pay what 
they are reasonably worth." Delaware, 
etc., Nav. Co. v. Keybold, 142 U. S. 
636, 12 Sup. Ct. 290, 35 L. ed. 1141. 
And see Goddard v. Foster, 17 Wall. 
(U. S.) 123, 21 L. ed. 589. 

"While a special contract remains 
executory the plaintiff must sue upon 
it. When it has been fully executed 
according to its terms and nothing re- 
mains to be done but the payment of 
the price, he may sue on the contract, 
or in indebitatus assumpsit, and rely 
upon the common counts. In either 
case the contract will determine the 
rights of the parties. When he has 
been guilty of fraud, or has willfully 
abandoned the work, leaving it un- 
finished, he cannot recover in any form 
of action. Whore ho has in good faith 
fulfilled, but not in the manner or 

vol. in 



206 



ASSUMPSIT 



(B.) Quantum Meruit and Quantum Valebat. —These actions lie for 
damages for breach of inferred contracts, or promises implied in fact, 80 
and for benefits conferred in reliance on unenforcible contracts.* 1 

(IV.) Pleading.— (A.) The Declaration.— (1.) Joinder of Counts.— The 
declaration may join the common counts with a count in special 
assumpsit. 82 The common counts may be joined in the same declaration, 



not within the time prescribed by the 
contract, and the other party has 
sanctioned or accepted the work, he 
may recover upon the common counts 
in indebitatus assumpsit. He must 
produce the contract upon the trial, 
and it will be applied as far as it can 
be traced; but if, by the fault of 
the defendant, the cost of the work 
or materials has been increased, in 
so far the jury will be warranted in 
departing from the contract prices.^ In 
such cases the defendant is entitled 
to recoup for the damages he may 
have sustained by the plaintiff's de- 
viations from the contract, not induced 
by himself, both as to the manner and 
time of the performance. There is 
great conflict and confusion in the 
authorities upon this subject. The 
propositions we have laid down are 
reasonable and just, and they are sus- 
tained by a preponderance of the best 
considered adjudications. Cutler v. 
Powell, 2 Sm. L. Cas. 1." Ingle v. 
Jones, 2 Wall. (U. S.) 1, 10, 17 L. ed. 
762, per Swayne, J. 

80. See cases supra, I, C, 2, c, (II), 

(B). 

"Assuming that an express con- 
tract had been proven which covered 
not only the details of the work and 
labor to be done and performed and 
material to be furnished, but also the 
price to be paid for these, plaintiff 
had a clear right to abandon this con- 
tract and sue in assumpsit, and if 
an express contract had been proven, 
notwithstanding the suit was not on 
it but on a quantum meruit or quan- 
tum valebat, the measure of the recov- 
ery by plaintiff would 'be the amount 
stated in the contract." Keif Schneider 
v. Beck, 148 Mo. App. 725, 129 S. W. 
232. 

81. See cases supra, I, C, 3, c, 
(II), (C), (4). 

Work in Chain Gang. — One who is 
wrongfully compelled to perform work 
for another may waive the tort and 
recover from the latter the value of 

VoL III 



the services. Hamby v. Collier (Ga.), 
71 S. E. 431, citing the following cases: 
Ark.— Greer v. Critz, 53 Ark. 247, 13 
S. W. 764. Ind.— Patterson J. Prior, 
18 Ind. 440, 81 Am. Dec. 367; Patter- 
son v. Crawford, 12 Ind. 241. Mo.— 
Hickam v. Hickam, 46 Mo. App. 496. 
Pa.— Peter v. Steel, 3 Yeates 250. 

82. Ala* — Kirkpatrick v. Bethany, 
1 Ala. 201. Mich.— First Nat. Bk. v. 
Steele, 136 Mich. 588, 99 N. W. 786; 
Carland V. Western U. Tel. Co., 118 
Mich. 369, 76 N. W. 762, 74 Am. St. Bep. 
394, 43 L. E. A. 280. Mo— McCor- 
mick H. & M. Co. v. Blair, 124 S. W. 
49. N. J.— Bruen v. Ogden, 18 N. J. 
L. 124. N. Y.— Tuttle v. Mayo, 7 
Johns. 132. N. C. — Burton v. Rose- 
mary Mfg. Co. 132 N. C. 17, 43 S. E. 
480. S. C. — Barnes v. Gorman, 9 Eich. 
297. Tenn. — Irwin v. Bell, 1 Overt. 
485. Va.— Kennaird v. Jones, 9 
Gratt. 183. Wis.— Manning v. Gal- 
land, etc., Co., 141 Wis. 199, 124 N. 
W. 291, code. 

In McCormick Harv. Mach. Co. v. 
Blair, 146 Mo. App. 374, 124 S. W. 49, 
the court said: "There can be no 
doubt that a count in assumpsit for 
goods sold and delivered may be joined 
with a count on a promissory note, and 
it seems to be the practice, in cases 
of the character here involved, to per- 
mit the suit to proceed on the note 
in a separate count, and the original 
cause of action in another. Of course, 
in those circumstances each cause of 
action asserted in the separate counts 
arises out of the original consideration, 
and the law will only permit one re- 
covery for the same indebtedness. 
Therefore, if the recovery is allowed 
on the notes, a judgment , should al- 
ways be given against the assertion of 
the indebtedness on the original con- 
sideration, and vice versa, if the re- 
covery is allowed on the count in as- 
sumpsit, the judgment should go 
against the notes." In this case the 
petition contained three counts. "The 
first two declare upon promissory notes 



ASSUMPSIT 



207 



and all the money counts may be joined in one count. 88 If the declara- 
tion contains special and common counts, plaintiff cannot resort to the 
common counts if there is in fact a special contract, unless he abandons 
the special count at the outset or fails to prove the special. 84 Plaintiff 
cannot abandon a special count and recover on common, after a trial 
which has proceeded on the theory of the special count. 85 Plaintiff 
cannot be compelled to elect as to which count he will proceed on, 8a 
but where he has two or more causes of action in one count he may be 
compelled to elect. 87 Neither debt nor a tort action can be joined with 
the common counts. 88 

(2.) Joinder of Parties. —Joint owners must sue jointly when waiving 
a tort action. 89 Joint promisees must sue jointly. If a legal right is 
violated by the joint act or default of two or more, they must all be 
joined as defendants. 00 If one of several joint defendants lives out of 
the state, plaintiff may discontinue as to him and get judgment against 
the others. 91 Non-joinder and misjoinder are generally taken advantage 
of by a plea in abatement, but if the proof supporting the objection to 



and the third count declares in as- 
sumpsit for an amount alleged to be 
due for a harvesting machine sold to 
the defendant. The indebtedness sued 
for in the third count is for the same 
consideration as that represented by 
the two promissory notes declared up- 
on in the first and second counts." 

"Counts for money had and received 
may be joined with special counts; 
and where, as in this case, the special 
counts are for damages for the non- 
delivery of goods, it is perfectly com- 
petent for the plaintiff, if the price 
was paid in money or money's worth, 
to prove the allegations of the special 
counts and introduce evidence to sup- 
port the common counts; and if it ap- 
pears that the defendant refused to 
deliver the goods, and that he has 
converted the same to his own use, 
the plaintiff, at his election, may have 
damages for the non-delivery of the 
goods, or he may have judgment for 
the price paid and lawful interest." 
Nash v. Towne, 5 Wall. (U. S.) 689, 
IS L. ed. 527, 530. 

83. Conn. — Main v. First School 
Dist. of Preston, 18 Conn. 214. Me.— 
Criffin v. Murdock, 88 Me 254, 34 Atl. 
30. Mass. — Whit well v. Brigham, 19 
Pick. 117. Mich. — Tregent v. Maybee, 
54 Mich. 226, 19 N. W. 962. N. Y.— 
Nelson v. Swan, 13 Johns. 483. 

See Buckingham v. Waters, 14 Cal 
146. 



84. Ala.— Moreland v. Ruffin, Min- 
or 18. Del.— Morris v. Burton, 4 Harr. 
53. Mich. — Berringor v. Cobb, 58 
Mich. 557, 25 N. W. 491; Beecher v. 
Pattee, 40 Mich. 181; Wyman v. Crow- 
ley, 33 Mich. 84. Miss!— Morrison >■. 
Ives, 4 Smed. & M. 652. N. Y— Rob- 
ertson V. Lynch, IS Johns. 451. Pa. — 
Carvill v. Garrigues, 5 Pa. 152. 

85. Wyatt v. Herring, 90 Mich. 581, 
51 N. W. 684; Wetmore v. McDoujrall, 
32 Mich. 276. 

86. Norris v. Durham, 9 Cow. (N. 
Y.) 151; Matthieu v. Nixon, 1 McCord 
(S. C.) 571. 

87. Union Nat. Bk. v. Lyons, 220 
Mo. 538, 119 S. W. 540. 

88. Conn. — Phelps v. Hurd, 31 
Conn. 444. 111.— Cruikshank v. Brown, 
10 111. 75. Ky. — Wickliffe v. Davis. 2 
J. J. Marsh. 69. Vt.— Joy v. Dill, 36 
Vt. 333. 

_ If the writ is in debt and declara- 
tion in assumpsit, it is cured by ver- 
dict. Shenk v. Mingle, 13 Serg. & R. 
(Pa.) 29. See Haynes v. Brown, 36 
N. H. 545. 

89. Woodward v. Sutton, 1 Cranch 
C. C. 351, 30 Fed. Cas. No. 18,009; Ir- 
win's Admr. v. Brown's Exrs., 35 Pa 
331. 

90. Will's Could PI. 387; Dundas v. 
Muhlenberg's Exrs., 39 Pa. 351; Bish- 
op v. Harrison's Admr., 2 Leio-h (Va ) 
532. 

91. Rand V. Nutter, 56 Me. 339. 

vol. in 



208 



ASSUMPSIT 



the same is inconsistent with any material part of the declaration ad- 
vantage may be taken of it under the general issue. 92 

(3.) General Allegations. — In indebitatus assumpsit the declaration 
should set out a legal liability of the defendant for a debt charged, and 
a promise to pay in consideration thereof, for the purpose of establish- 
ing the plaintiff's right, and then set forth the defendant's wrong, or 
breach. 93 If the suit is on a contract executed except for the payment 
of money, it is sufficient to set out the indebtedness without specially 
stating the contract. 94 In the quantum meruit and the quantum valebat 
counts the fact that the plaintiff has performed work, or furnished 
goods is alleged directly as a consideration for the promise to pay as 
much as the plaintiff deserved, or goods were reasonably worth, without 
alleging that by reason thereof a debt had arisen, followed by an allega- 
tion of the reasonable worth of the services or goods, and with the 
allegation of a breach. 95 

(4.) Variance. — The allegations in general assumpsit are so general 
that there is little danger of a variance, but if the proof offered does 
not conform to the allegations it should be rejected, or if admitted is 
fatal. 96 



92. Will's Gould PI. 451; Mellandy 
v. N. E. P. Union, 36 Vt. 31; Wilson v. 
McCormick, 86 Va. 995, 11 S. E. 976; 
K#yser v. Disher, 9 Leigh. (Va.) 357. 

Appointment of guardian ad litem 
for infant. Barclay v. Govers, 1 
Cranch. C. C. 147, 2 Fed. Cas. No. 973. 

It may be proved by parol that Al- 
exander and A. H. are the same per- 
son. Payton v. Tappan, 2 111. 387. 

A declaration is demurrable which 
joins counts against an administrator 
de "bonis non with count against him 
individually. Godbold v. Koberts' 
Admr., 20 Ala. 354. 

93. U. S— Derk P. Yonkerman Co. 
v. Chas. II. Fuller 's Avd. Agency, 135 
Fed. 613. Ala.— Maury v. Olive, 2 
Stew. 472. Cal.— De Witt v. Porter, 
13 Cal. 171; Freeborn, Goodwin v. 
Glazer, 10 Cal. 337. 111.— Zjednoczenie 
v. Sadecki, 41 111 App. 329. Ky — 
Lunderman v. Lunderman, 2 J. J. 
Marsh. 597. 

If the introduction of the declara- 
tion is in debt (or. trover) but the 
counts are in assumpsit, the declara- 
tion is in assumpsit. Ayers v. Rich- 
ards, 12 111. 146; Morford v. White, 
53 Ind. 547. 

To support the eommon counts it is 
necessary to prove everything which 
it would be necessary to aver if the 
count was special. Landrum v. Brook- 
shire, 1 Stew. (Ala.) 252. 

VoL III 



94. Olcese v. Mobile F. & T. Co., 
211 111. 539, 71 N. E. 1084; Baker v. 
Corey, 19 Pick. (Mass.) 496. 

In a conditional promise the declara- 
tion should allege the conditional un- 
dertaking, the happening of the con- 
dition, that thereby the defendant be- 
came liable to pay, and thereupon un- 
dertook and promised (with failure to 
pay). Massachusetts Mut. Life Ins. 
Co. v. Kellogg, 82 111. 614. 

"Defendant being indebted to the 
plaintiff in the sum of $ , ac- 
cording to account annexed, in con- 
sideration thereof promised," is suffi- 
cient. Eider v. Robbins, 13 Mass. 284. 
See Burton & Co. v. Hansford, 10 W. 
Va. 470, 27 Am. Rep. 571. 

Pleadings lost may be supplied by 
copy. Hartford Fire Ins. Co v. Van- 
duzer, 49 111. 489. 

95. McKelvey Com. Law PI. 28. 

The time of the accruing of the in- 
debtedness is immaterial, provided it 
is a day prior to the commencement of 
suit. 

96. Ala.— Strickland w Burns, 14 
Ala. 511. Conn. — Zacarino v. Pal- 
lotti, 49 Conn. 36. 111.— Chicago v. C. 
& N. W. R. Co., 186 111. 300, 56 N. 
E. 795. la. — Payne v. Couch & Kins- 
man, 1 Greene 64, 46 Am. Dec. 497. 
Mo. — Kennerly v. Somerville, 68 Mo. 
App. 222. N.' Y. — Richardson v. Smith, 
8 Johns. 439; 1 Chit. PI. 337. 



ASSUMPSIT 



209 



(5.) Amendment. —An amendment will not be allowed if it intro- 
duces a new cause of action, but otherwise it will be granted in the dis- 
cretion of the trial court. 97 

(6.) Bill of Particulars. -The defendant may require a bill of particu- 
lars of the declaration, or the plaintiff, of the set-off, before pleading to 
the merits. 98 A bill of particulars is a detailed informal statement of 
a plaintiff's cause of action, or of a defendant's set-off. 99 A party fail- 
ing to demand a bill of particulars must be prepared to meet any case 
admissible under the common counts. 1 A party is confined in proof to 
items in the bill of particulars. 2 An account annexed is a part of the 
declaration, but a bill of particulars is not. 3 



97. Me. — Holmes v. Robinson Mfg. 
Co., 60 Me. 201; Brewer v. East Machi- 
as, 27 Me. 489. Mass. — Swan v. Nes- 
mith, 7 Pick. 220, 19 Am. Dec. 282; 
N. H.— Griffin v. Simpson, 45 N. H. 18. 
Vt — Carter v. Hosford, 48 Vt. 433. 

A declaration in general assumpsit 
may be amended by allowing a declar- 
ation in debt to be filed. Bishop v. 
Silver Lake M. Co., 62 N. H. 455. 

A declaration with a special count 
on a note and a count for money had 
and received may be amended by add- 
ing a new count for money paid. J. 
S. & W. P. Libbey v. Pierce, 47 N. H. 
309. 

A declaration containing the common 
counts for goods sold and delivered 
may be amended by adding a special 
count on the contract made at the time. 
Rogers v. Phinney, 13 N. J. L. 1. 

A declaration with a count for work 
and labor cannot be amended by add- 
ing counts for use and occupation and 
for goods, wares and merchandise sold. 
Thompson v. Phelan, 22 N. H. ,339. 

A declaration containing the com- 
mon indebitatus counts counting on a 
sale, cannot be amended by adding a 
count upon a guaranty. Brodek & Co. 
v. Hirschfield. 57 Vt. 12. 

98. Randall v. Glenn, 2 Gill (Md.) 
430; Mercer v. Sayre, 3 Johns. (N. 
Y.) 248. 

99. An account filed with the count 
is not a bill of particulars. Carter v. 
Tuck, 3 Gill (Md.) 248. 

A count on an account annexed, 
without the account, may be amended 
by using the bill of particulars for the 
account. Tarbell v. Dickinson, 3 Cush. 
(Mass.) 345. 

A bill of particulars with abbrevia- 
tions is sufficient. Harris v. Christian, 
10 Pa. 233. 



1. Hall V. Woodin, 35 Mich. 67. 

In the common counts the only rea- 
son why the plaintiff must show in 
what respect the defendant is indebted 
to him is that it may appear that he 
is not suing on a debt of record or 
specialty. 1 Chit. PI. 337. 

2. Conn. — Zacarino v. Pallatti, 49 
Conn. 36. Ind. — Harding v. Griffin, 7 
Blackf. 462. Md.— Southern Bldg. & 
Loan Assn. v. Price, 88 Md. 155, 41 
Atl. 53, 42 L. R. A. 206. Mich.— Ben- 
nett v. Smith, 40 Mich. 211. N. H.— 
Merrill v. Russell, 12 N. H. 74. N. Y. 
Carter v. Hope, 10 Barb. 180. 

If the bill of. particulars exceeds 
the amount claimed in the declaration, 
plaintiff may remit the excess. But- 
Ler v. Millett, 47 Me. 492. 

Plaintiff may show statute of frauds. 
Wright V. Dickinson, 67 Mich. 590, 42 
N. W. 849. 

Proof of handwriting. Robinson v. 
Dibble's Admr., 17 Fla. 457. 

3. Me. — Bennett v. Davis, 62 Me. 
544. Vt. — Aseltine v. Perry, 75 Vt. 
208, 54 Atl. 190. Va.— Geo." Campbell 
Co. v. Angus Co., 91 Va. 438, 22 S. E. 
167; Wright v. Smith, 81 Va. 777, 54 
Atl. 190. 

An account filed with the declara- 
tion must be intelligible, but if it gives 
notice of the character of claim it is 
sufficient without items. Burwell V. 
Barges, 32 Gratt. (Va.) 472; Moore v. 
Mauro, 4 Rand. (Va.) 483. 

Plaintiff does not w'aive common 
counts by failing to file account. Fed- 
eration Wd. Glass Co. V. Cameron G. 
Co., 58 W. Va. 477, 52 S. E. 518. 

When a statute requires the affida- 
vit of plaintiff or his agent to an ac- 
count filed, "bookke^er" does not 
| import such agency. Mcrriman Co. v. 

Vol. Ill 



210 



ASSUMPSIT 



(7.) Special Allegations.— (a.) Bequest by Defendant. — In general as- 
sumpsit it is unnecessary to allege a request by defendant in the case 
of the counts for goods sold and delivered, for goods bargained and 
sold for money lent, for money had and received, and on an account 
stated as a sale, loan; and statement of account are the acts of both 
parties, and the receipt of money for which money had and received 
lies is the act of defendant alone ;* but it is necessary to allege a request 
though it is not necessary to prove the same but the facts in the count 
for money paid, 5 and it is necessary to allege and prove a request in 
the counts for services and in the quantum meruit and quantum valebat 

counts. 6 . „ 

(b.) Consideration. — The declaration in general assumpsit must allege 
a consideration. In the ordinary indebitatus counts this is done by 
alleging a precedent debt on one of the common counts (benefit to 
promisor), 7 and in the quantum counts by alleging the precedent per- 
formance of work or sale and delivery of goods (detriment to 

promisee) . 8 

(c.) Promise. — The declaration in general assumpsit must allege an 
express promise to pay the amount of the debt charged (common 
counts), or reasonable worth (quantum counts), or the declaration is 
bad on demurrer. 9 There is no such thing as an implied promise in 



Thomas & Co., 103 Va. 24, 48 S. E. 
490. 

A declaration under the Code of 1880 
which accurately specifies two items 
in a suit for board and for money re- 
ceived, is sufficient without a bill of 
particulars. Tierney v. Duffy, 59 Mass. 
364. 

4. Langdell Contracts, §96. 

5. Langdell Contracts, §96. 

6. Ala. — McCrary v. Brown, 50 So. 
402; Kanjutsky v. Tennessee C. & I. R. 
Co., 154 Ala. 316, 45 So. 676. Mont.— 
Conrad Nat. Bk. v. Great Northern K. 
Co., 24 Mont. 178, 61 Pac. 1. N. H.— 
Allen v. Woodward, 22 N. H. 544. N. 
Y. — Hicks v. Burhans, 10 Johns. 243; 
Comstock v. Smith, 7 Johns. 87. Pa. 
Stoever v. Stoever, 9 Serg. & B. 434. 
Eng.— Hayes V. Warren, 2 Str. 933, 91 
Eng. Reprint 950. 

Request proved by circumstantial 
evidence. Hill v. Packard, 69 Me. 158. 

Request Inferred, — Cape Elizabeth 
v. Lombard, 70 Me. -396; Oatfield v. 
Waring. 14 Johns. (N. Y.) 188. 

7. Ala. — Carlisle v. Davis, 9 Ala. 
858. Conn. — Lyon v. Alvord, 18 Conn. 
66. Ky. — Beauchamp v. Bosworth, 3 
Bibb 115. Miss. — Brown v. Webbler, 
6 Cush. 560. Vt. — Harding v. Cragie, 
8 Vt. 501. 

8. McKelvey Com. Law PI. 28. 

9. Conn. — Story v. Barrell & G., 

vol. in 



2 Conn. 665. Ind.— Ferguson v. 
Rhodes, 7 Blackf. 262. Me.— Coffin v. 
Hall, 75 Atl. 385. Midi.— Hoard v. 
Little, 7 Mich. 468. N. Y— Candler 
v. RossiteJ, 10 Wend. 487. Utah.— 
Kilpatrick, etc., Co. v. Box, 13 Utah 
494, 45 Pac. 629. 

Under code procedure either a prom- 
ise must be alleged or the facts from 
which the law will imply a promise. 
Ind, — Watkins v. DeArmond, 89 Ind. 
553. Md. — Swem v. Sharretts, 48 Md. 
408. Mo. — Wells v. Pacific R. R., 35 
Mo. 164. 

"It is sufficient under the code to 
state facts in an action in assumpsit 
from which a promise to pay will be 
implied. (Nat'l Bank v. Landis, 34 
Mo. App. 433, 440.) This petition al- 
leges the execution, signing and de- 
livery to R. B. Palmer & Sons of a 
negotiable promissory note and states 
the principal, the date of _ execution, 
date of maturity and the interest as 
they are given in the note. A prom- 
issory note is defined to be 'An un- 
conditional promise in writing for the 
payment of a certain sum of money 
absolutely.' (3 Kent, Comm., 74; 
Daniel, Nego. Inst., sec 28.) An alle- 
gation that a promissory note was ex- 
ecuted and delivered necessarily im- 
plies a promise by the maker to pay, 
and an allegation that such a note was 



ASSUMPSIT 



211 



pleading, 10 the fact is implied appears only in evidence and not upon 
the record. 

(d.) Bequest of Payment. — The declaration in general assumpsit is 
good though it does not allege a request of payment by plaintiff, as it is 
a consequence of the cause of action disclosed. 11 But where a demand 
is necessary to give a cause of action it should be alleged or the declara- 
tion is defective. 12 

(e.) Amount Claimed. — The quantum meruit and quantum valebat 
counts should allege what the services or goods are reasonably worth, 
and the common counts should state the amount of the indebtedness, 
together with the amount of damage caused by failure to pay. Plain- 
tiff may recover less but not more than the sum set out in the declara- 
tion. 13 

(f.) Breach. — The declaration in general assumpsit should allege a 
breach. 14 

(g.) Forms Peculiar to Various Counts. — In the common form of indebi- 
tatus assumpsit it was alleged that on a certain date the defendant was 
indebted to the plaintiff in a certain sum of money for money paid for 
defendant's use (or for money had and received by defendant to plain- 
tiff's use, or for money lent and advanced, or for goods sold and de- 
livered, or for goods bargained and sold, or for work, labor and services, 
or materials (as the case might be), at defendant's request; that being 
so indebted the defendant, in consideration thereof, promised to pay 
said sum when requested; but that he has not paid said sum though 
requested and still refuses to pay the same to plaintiff's damage in a 
certain sum. The counts of quantum meruit and quantum valebat are 
like the regular indebitatus count except that the services performed 
and the goods sold and delivered were alleged directly as the considera- 
tion for the promise to pay as much as the plaintiff deserved, or the 



executed and delivered to a person or 
persons named (in this case Palmer 
& Son) implies a promise to pay 
whomsoever is mentioned. This might 
not follow from a mere allegation that 
it was delivered to said person, but 
when the averment is also that it was 
executed to it he is sufficiently desig- 
nated as the payee to give him, prima 
facie, the right to transfer the note 
by assignment. In the case of Bank 
V. Landis, cited supra, the pleader 
described the note as one whereby, for 
value received, the defendant promised 
to pay to the order of the plaintiff 
the sum mentioned. This, however, 
was but a statement of the terms of 
the note and not a distinct averment 
of a promise to pay; and the conten- 
tion in that case was there should 
have been a distinct averment. Though 
in the present case the petition does 
not describe the note as containing a 



promise to pay, the description of it 
as a promissory note implies that it 
contained such a promise." Bick v. 
Clark, 134 Mo. App. 544, 114 S. W. 
1144. 

10. Will's Gould PI. 210; Higgins V. 
Germaine, 1 Mont. 230; Douglas & Var- 
num v. Morrisville (Vt.), 79 Atl. 391. 

11. -Forrest v. Jones, 7 Ala. 493; 
Henderson v. Howard, 2 Ala. 342; 1 
Chit. PI. 322-323. 

12. Ind. — Ferguson v. Dunn's 
Admr., 28 Ind. 58. Mo. — Horine v. 
Bone, 69 Mo. App. 481. Pa. — Dewart 
v. Masser, 40 Pa. 302; Willet v. Wil- 
let, 3 Watts 277. 

13. Ala.— Tankersley v. Childers, 23 
Ala. 781. 111. — SawveV v. Daniels, 48 
111. 269. Pa.— Slitzell v. Michael, 3 
Watts & S. 329. Vt. — Wheeler v. Shed, 
1 D. Chip. 208. 

14. 1 Chit. PI. 335; MeKelvey Com. 
Law PI. 29. 

Vol. m 



212 



ASSUMPSIT 



goods were reasonably worth ; that the plaintiff deserved a named sum, 
or the goods were reasonably worth a named sum, etc. In the account 
stated it was alleged that on a day. named the defendant accounted 
with the plaintiff, etc., and that upon such accounting, the defendant 
having been found in arrear and indebted, in consideration thereof, 
promised to pay, etc. 15 

(B) The Pleas.— (1.) The General Issue.— (a.) What May Be Slwwn 
Under, in General.^-ln general assumpsit, under the general issue the 
defendant may in general introduce anything growing out of or con- 
cerning the transaction which shows that the plaintiff ex aequo et bono 
is not "entitled to recover because he has no subsisting debt, either be- 
cause it never existed, or because it has been extinguished. 16 

(b.) Particular Matters Which May Be Shown.— (AA.) Payment — In gen- 
eral assumpsit payment may be shown under the general issue, 17 if made 
before commencement of suit ; if made after plea, it can be given only 
in mitigation of damages. 18 

(BB.) Former Adjudication. —Under the general issue in general 
assumpsit may be given a record of a former adjudication between the 
same parties on the same cause of action. 19 

(CC.) Action Premature. —Under the general issue in general assump- 
sit may be shown that the action was commenced before the debt was 
due. 20 

(DD.) Non-joinder of Parties. —Under the general issue in general 
assumpsit the non- joinder or misjoinder of parties plaintiff or defendant 
may be taken advantage of if the proof which shows the mistake is m- 



15. 1 Chit. PL, 335-336; Bradley v. 
Davenport, 6 Conn. 1; Allen v. Patter- 
son, 7 N. Y. 476, 57 Am. Dec. 542. 

16. U. S— MeCrea v. Parsons, 112 
Fed. 917, 50 C. C. A. 612; Crane El. Co. 
v. Clark, 80 Fed. 705, 26 C. C. A. 100. 
Ala.— Wadsworth v. First Nat. Bk., 124 
Ala. 440, 27 So. 460; Meredith v. Eich- 
ardson, 10 Ala. 828. Ga — Causey v. 
Cooper, 41 Ga. 409. 

A plea showing a good defense to 
a note without answering counts in 
declaration is bad. Anonymous, 19 
Wend. (N. Y.) 226. 

Effect of denial of promise, or of in- 
debtedness. Levinson v. Schwartz, 22 
Cal. 231, 83 Am. Dec. 64; Wells v. Mc- 
Pike, 21 Cal. 215. 

Nil debet is a nullity as a plea to a 
plea to a declaration in assumpsit. 
Fla. — Poppell v. Culpepper, 56 Fla. 515, 

47 So. 351. 111.— Kock & Co. v. Merk, 

48 111. App. 26. Wis.— Crane Bros. Mfg. 
Co. v. Morse, 49 Wis. 368, 5 N. W. 815. 

Accord and satisfaction not open. 
Grinnell v. Spink, 128 Mass. 25. 

VoL III 



Set-off not admissible. Sangston v. 
Maitland, 11 Gill & J. (Md.) 286. 

Statute in regard to champerty and 
maintenance cannot be shown. Best v. 
Strong, 2 Wend. (N. Y.) 319, 20 Am. 
Dee. 607. 

17. Ala. — Gunn v. Howell, 35 Ala. 
144, 73 Am. Dec. 484. Cal.— Mickle v. 
Heinlen, 92 Cal. 596, 28 Pac. 784. 
Ky.— Wheatley v. Phelps, 3 Dana 302. 
Mass. — Bayliss & M. v. Fettyplace, 7 
Mass. 325. Mich. — Brennan v. Tiet- 
sort, 49 Mich. 397, 13 N. W. 790. 
N. Y— Drake v. Drake, 11 Johns. 531. 
Ohio. — Sapp v. Laughead, 6 Ohio St. 
174. Pa.— Fisher v. Ball, 93 Pa. 390; 
Beals v. See, 10 Pa. 56, 49 Am. Dec. 
573. 

18. Phleger v. Ivins, 5 Harr. (Del.) 
118; Moore v. M'Nairy,, 12 N. C. 319. 

19. Young v. Black, 7 Cranch (U. S.) 
565, 3 L. ed. 440; Arnold v. Paxton, 6 
J. J. Marsh (Ky.) 503; Cook v. Vimont, 
6 T. B. Mon. (Ky.) 284, 17 Am. Dec. 
157. 

20. Eainey v. Long, 9 Ala. 754; 
Kahn v. Cook, 22 111. App. 559. 



ASSUMPSIT 



213 



consistent with any material part of the declaration; otherwise the 
mistake is pleadable in abatement. 21 

(EE.) Maioerformance. — Malperformance may be shown under the 
general isp-e in general assumpsit. 22 

(FF.) Fraud. — Fraud may be shown under the general issue. 23 

(GG.) Statute of Frauds. — The statute of frauds may be shown under 
the general issue. 24 

(c.) Notice of Special Matters. -A defendant cannot under the general 
issue give notice of special matters which can be shown under the gen- 
eral issue. 25 

(d.) What Admitted by. — (AA.) General Assumpsit. — By pleading the 
general issue the defendant precludes himself from objecting to the 
introduction of a special contract in evidence in an action in general 
assumpsit. 26 

(BB.) Character of Party Suing.— The general issue admits the charac- 
ter of the party suing in general assumpsit. 27 

(e.) Amendment. — Power of amendment is discretionary with the 
court. 28 

(2.) Special Pleas. —Tender, set-off, the statute of limitations, that 
the plaintiff has become an alien enemy after the making of the con- 
tract and discharge in bankruptcy cannot be given under the general 
issue and must be pleaded specially; 29 and the defendant is at liberty 

28. Aldridge v. Grider, 13 Smed. & 
M. (Miss.) 281. 

29. Misjoinder.— White v. Perley. 15 
Me. 470. 

Jurisdiction.— Empire C. & C. Co. v 
Hull C. & C. Co., 51 W. Va. 474, 41 S. 



21. Henricksen v. Mudd, 33 111. 470; 
Fairbanks v. Badger, 46 111. App. 644; 
Marshall v. Jones, 11 Me. 54, 25 Am. 
Dec. 260; Will's Gould PI. 451. 

22. Gaw v. Woleott, 10 Pa. 43; Heck 
v. Shener, 4 Serg. & K. (Pa.) 249, 8 
Am. Dec. 700. 

23. Thomas V. Grise, 1 Penne. 
(Del.) 381, 41 Atl. 883. 

24. Eastwood v. Kenyon, 11 Ad. & 
El. 438, 39 E. C. L. 127. 

25. 111.— Wadhams v. Swan, 109 111. 
46. N. J.— Little v. Bolles, 12 N. J. L. 
171. Pa. — TJhler v. Sanderson, 38 Pa. 
128. Vt — Blaisdell v. Davis, 72 Vt. 
295, 48 Atl. 14. Va.— Fire Assn. of 
Phila. v. Hogwood, 82 Va. 342, 4 S. E. 
617. Eng.— Hayselden v. Staff, 5 Ad. 
& El. 153, 31 E. C. L. 307. 

Evidence of set-off is not admissible 
without notice. Judson v. Eslava, 
Minor (Ala.) 2. 

26. Willis v. Fernald, 33 N. J. L. 
206. 

27. Me.— Swift etc. Co V. Brown, 77 
Me. 40. Miss. — Peck v. Thompson, 23 
Miss. 367. Ohio.— M. E. Church v. 
Wood, 5 Ohio 283. But see Ala — 
Nabors v. Shippey, 15 Ala. 293. Md. — 
Winchester v. Union Bk., 2 Gill & J. 
73, 19 Am. Dec. 253. Ohio.— Lewis v. 
Bank of Kentucky, 12 Ohio 132, 40 Am. 
Dec. 469. 



E. 9i; 

Statute of Limitations. — Ala. — Wil- 
son v. Calvert, 18 Ala. 274. Conn.— 
Bobbins V. Harvey, 5 Conn. 335. Eng. — 
Lee v. Rogers, 1 Lev. 110, 83 Eng. Re- 
print 322. 

Plaintiff not owner (waiving tort ac- 
tion). Phelps v. Church, 115 Fed. 882, 
53 C. C. A. 407. 

Puis Darrein Continuance. — Johnson 
v. Kibbce, 36 Mich. 269. 

Special Agreement.— Krouse v. De- 
Blois, 1 Cranch C. C. 138, 14 Fed. Cas. 
No. 7,937; Stoll v. Ryan, 3 Brew (S. C.) 
238. 

Set-off. — Sangston 
Gill & J. (Md.) 286. 

Accord and Satisfaction.— Grinnell v. 
Spink, 128 Ma.ss. 2."». 

Declaration on the Money Counts 
Alone. — A plea in bar setting up mat- 
ters in defense to certain notes in- 
tended to be given in evidence under it 
is bad, though the bill of particulars 
contains copies of the same. Dibble V. 
Kemp«hall, 2 Hill (X. Y.) 124. 

vol. in 



V. Maitland, 11 



214 



ASSUMPSIT 



to plead any matters in avoidance of the obligation or discharge of the 
action, though the same are admissible under the general issue. 30 

(C.) Demurrer. —The principles governing the demurrer in general 
assumpsit are like those in special assumpsit. 31 A demurrer should be 
taken before a plea.? 2 Judgment should be for plaintiff, unless for mis- 
joinder of actions, if one count in the declaration is good, whether de- 
fendant demurs or enters to the whole declaration a plea which is good 
only to one count. 33 After judgment for plaintiff on demurrer a writ 
of inquiry should be issued to ascertain the damages. 34 It is error to 
enter final judgment while there are unsettled issues of fact. 35 

(D.) Eepli cation. — The replication must support the declaration. If 
it does not, there is a departure, which is fatal on demurrer. 36 A reply 
of a new promise to a plea of the statute of limitations or discharge in 
bankruptcy is not a departure, but a reply of fraud is a departure. 37 

(V.) Verdict and Judgment. — The verdict must be responsive to the 
issue and, if a general verdict for the plaintiff, should contain a finding 
of the amount of the damages, not to exceed the amount claimed, 38 if 



Presumption as to Filing.— Tomlinson 
v. Hoyt, 1 Smed. & M. (Miss.) 515. 

30. Payment. — Ala. — Haley v. Col- 
ler, Minor- 63. Ark. — Hill v. Austin, 19 
Ark. 230. N. J. — Somerville v. Stew- 
art, 48 N. J. L. 116, 3 Atl. 77. N. Y — 
New York Dry Dock Co. v. M'Intosh, 5 
.Hill 290; Hughes v. Wheeler, 8 Cow. 
77. Pa. — Stillwell v. Eickards, 152 Pa. 
437, 25 Atl. 831; Hamilton v. Moore, 
4 Watts & S. 570. W. Va — Douglass v. 
Cent. Land Co., 12 W. Va. 502. 

Set-off may be given under plea of 
payment in Mississippi. Henry v. 
Hoover, 6 Smed. & M. (Miss.) 417. 

The general issue filed at a subse- 
quent term amounts to a waiver of a 
plea in abatement filed at return term. 
Alliston v. Lindsey, 12 Smed. & M. 
(Miss.) 656. 

Such matters were required by the 
Hilary rules of 1834 to be specially 
pleaded. Martin Civ. Proc. 258. 

Motion to set aside attachment. 
Downes v. Phoenix Bk. of Charleston, 6 
Hill (N. Y.) 297. 

31. Supra, p. 175. 

32. Cicotte v. County of Wayne, 44 
Mich. 173, 6 N. W. 236. 

33. U. S. — French v. Tunstall, 
Hempst. 204, 9 Fed. Cas. No. 5,104. 
Ala. — Werth v. Montgomery etc. Co., 
89 Ala. 373, 7 So. 198. 111.— Goodrich 
v. Reynolds, 31 111. 490, 83 Am. Dee. 240. 

34. Stanton v. Henderson, 1 Ind. 69. 

35. Houghton v. Tolman, 74 Vt. 467, 
52 Atl. 1032; Morgantown Bank v. Fos- 
ter, 35 W. Va. 357, 13 S. E. 996. 

vol in 



36. Griswold v. National Ins. Co., 3 
Cow. (N. Y.) 96; Sterns v. Patterson, 
14 Johns. (N. Y.) 132. 

37. Mich. — Craig v. Seitz, 63 Mich. 
727, 30 N. W. 347. N. Y.— Shippey 0. 
Henderson, 14 Johns. 178. S. C. — Allen 
v. Mayson's Exrs., 3 Brev. 207, 7 Am. 
Dec. 458. See also Ala. — Merrill v. 
Worthington, 155 Ala. 281, 40 So. 477. 
111.— Betts v. Francis, 1 111. 165. Eng. 
Chandler v. Vilett, 2 Saund. 120, 85 
Eng. Eeprint 836. 

When a declaration contains several 
counts, if the count on which judgment 
is rendered is good, judgment will not 
be reversed. McCredy v. James, 6 
Whart. (Pa.) 547. 

First enter interlocutory judgment 
in case of default. Strong v. Catlin, 3 
Pin. (Wis.) 121. 

Plaintiff is entitled to recover if the 
evidence of defendant taken with his 
shows that defendant is indebted to 
him upon any count of the declaration. 
Sandoval C. & M. Co. v. Main, 23 111. 
App. 395. 

Declaration with bill of particulars 
against two jointly, evidence, part of 
items against both, part against one; 
verdict only for items against both. 
Enos v. Stansbury, 18 W. Va. 477. 

Jury is necessary if the price is not 
ascertained. Phillips v. Malone, Minor 
(Ala.) 110. 

Waiver of inquiry of damages. Jack- 
son v. Dotson, 110 Va. 46, 65 S. E. 484. 

38. Martin Civ. Proc. 309. 



ASSUMPSIT 



215 



damages are claimed. The final judgment, when given in plaintiff's 
favor, is that he recover a specified sum, assessed by a jury, or found 
on reference to a master, and full costs of suit. 30 

II. UNDER CODE PROCEDURE.— In those states which have 
abolished the old forms of actions and adopted in their stead one single 
formless action for the pursuit of all remedies, based upon a statement 
of the facts from which the primary right arises, and also of the facts 
which constitute the violation of such primary right as the cause of 
action, the distinctions between the forms of special assumpsit and 
general assumpsit are no longer important ; but even in those states the 
reform procedure has not affected the substantive rights then existing, 
whether antecedent or remedial, nor has it created any new causes of 
action; it simply unifies the system of pleading and procedure. Fic- 
tions are abolished; and, though perhaps contrary to the fundamental 
principle of the new procedure, a complaint in substantially the same 
form and with the same allegations as the old counts in general assump- 
sit is generally upheld, and even the common law rule in regard to 
suing in such form of action when there is a special contract is still in 
force. 40 



39. On default the court is not au- 
thorized to render final judgment by 
default without the intervention of a 
jury. Ala. — Porter v. Burleson & 
Davis, 38 Ala. 343; Beville v. Reese, 25 
Ala. 451. Cal. — Hunt v. San Francisco, 
11 Cal. 250. Miss. — Mississippi Cent. 
R. Co. V. Fort, 44 Miss. 423. 

Verdict for defendant under general 
issue, Burplusage and rejected. Neely 
r. Benaening, 150 Pa. 520, 24 Atl. 748. 

In general assumpsit against two, if 
one defaults, but the other sets up a 
defense which negatives right to re- 
cover against either, plaintiff cannot 
•'■cover against one defaulting. Bow- 

an v. Noyes, 12 N. H. 302; Williams 



v. M'Fall, 2 Serg. & R. (Pa.) 280. See 
Edmonson v. Barrell, 2 Cranch. C. C. 
228, 8 Fed. Cas. No. 4,284. 

Affidavit of defense is sufficient to 
prevent judgment. Smith v. Elder, 167 
Pa. 487, 31 Atl. 735. 

If one count is defective, verdict gen- 
eral, judgment will be arrested. Joy 
v. Dill, 36 Vt. 333. 

40. Pomeroy's Code Remedies, §§13, 
436; Bliss Code PI., §§6, 156. Cal— 
Pleasant v. Samuels, 114 Cal. 34, 45 Pac. 
998; Chapman V. State. 104 Cal. 690, 38 
Pac. 457, 43 Am. St. Rep. 158. Md.— 
Smith v. Woman's Medical College, 110 
Md. 441, 72 Atl. 1107. N. Y.— Propsey 
v. Sweeney, 27 Barb. 310. 

vol. m 



ATTACHMENT 

By THOMAS H. CALVERT, 
Of the Raleigh Bar; and the Editorial Staff. 



I. DEFINITION, 238 

H INTRODUCTION EXPLANATORY OF THE PROCEED- 
ING, 239 

A. Origin of the Proceeding, 239 

B. Nature of the Proceeding, 239 

1. In General, 239 

2. In Personam or In Rem, 239 

3. As an Original Proceeding, 242 

4. As an Ancillary Proceeding, 243 

5. As a Special Proceeding or a Provisional Remedy, 244 

C. Object of the Proceeding, 244 

HI. GENERAL RULES GOVERNING CONSTRUCTION AND 
OPERATION OF STATUTES, 245 

A. Constitutionality, 245 

B. Construction Generally, 246 

C. Prospective or Retrospective Operation, 249 

D. Several Statutes, 250 

E. Adjudging Rights According to the Lex Fori, 251 

F. Existence of or Resort to Other Remedy, 251 

IV. SEVERAL ATTACHMENTS, 253 

A. In the Same Cause, 253 

B. In Other Causes, 256 

C. Plea of Pendency of Another Suit, 256 

1. In General, 256 

2. Suits in Different Jurisdictions, 258 

V. PERSONS FOR AND AGAINST WHOM ATTACHMENT 
MAY BE ISSUED, 259 

A. Persons Who May or May Not Have Attachment, 259 

1. In General, 259 

2. Corporations, 259 

3. N on-Resident s, 260 

a. In General, 260 

b. Foreign Corporations, 260 

c. As Against a N on-Resident , 261 

vol. in 



ATTACHMENT 217 

B. Persons Against ^Yhom Attachment May Be Issued, 262 

1. In General, 262 

2. Against Corporations, 264 

3. Against Deceased Persons, Estates or Successions, 265 

4. Several Defendants, 266 

5. Against Xt>n-Ii'< sidents, 267 

a. In General, 2G7 

b. Foreign Corporations, 268 

c. Foreign Administrator or Executor, 270 

VI. WHAT MAY BE ATTACHED, 270 

A. In General, 270 

B. As Dependent Upon Right To Levy Execution, 271 

C. Particular Kinds of Property, 271 

1. Exempt Property, 271 

2. Real Property and Interests Therein, 272 

a. In General, 272 

b. As Dependent on Amount of Personalty, 272 

c. Products of the Soil, 273 

3. Personal Property, 273 

a. In General, 273 

b. Fixtures, 273 

c. Shares of Stock in Incorporated Companies, 271 

d. Money and Bank Notes, 277 

e. Property in Process of Manufacture, 277 

f. Intermingled Goods, 278 

g. Perishable Goods, 278 

4. Liens, 279 

5. Intoxicating Liquors and Licenses, 279 

6. Public Conveyances, 279 

7. Property In Custodia Legis, 280 

a. /» General, 280 

b. Property Previously Attached, 282 

c. Properly Previously Levied on by Execution, 283 

d. Property Released on Bond, 285 

Vol. in 



218 ATTACHMENT 

8. Property Fraudulently Disposed of, 286 

a. Interest of Vendor, 286 

b. Interest of Vendee, 287 

9. Equitable Interests, 287 

a. In General, 287 

•b. Equitable Interests in Land, 288 

c. Property Held in Trust, 289 

d. Equity of Redemption, 291 

10. Choses in Action, 292 
. a. In General, 292 

b. Debts, 29.3 

c. Negotiable Notes, 295 

11. Interest in Insurance Policies, 296 

12. Interests in Estates of Deceased Persons, 297 

13. Reversions, Remainders and Contingent Interests, 300 

D. Necessity for Ownership or Possession of Property by 
Debtor, 300 

1. In General, 300 

2. Property and Rights of Individual Stockholders, 302 

3. Interests Under Contracts, 302 

a. In General, 302 

b. Interests of Vendor and Vendee in Contract of 

Sale, 303 

(I.) Contracts for Sale of Land, 303 

(II.) Contract's for Sale of Personal Property, 304 

4. Dower and Curtesy Interests, 307 

5. Property Pledged, 308 

6. Property Held on Bailment, 309 

7. Property Held on Consignment, 310 

8. 'Property in Possession of Agent or Factors, 312 

9. Property Conveyed or Assigned, 313 
10. Property Mortgaged, 314 

a. Mortgage of Real Property, 314 
.(I.) Interest of Mortgagor, 314 
(17.) Interest of Mortgagee, 314 
vol. in 



ATTACHMENT 219 

b. Chattel Mortgage s, 315 

(I.) Interest of Mortgagor, 315 
(II.) Interest of Mortgagee, 319 

11. Leasehold Interest, 319 

a. /// G( neral, 319 

b. Interest of Lessor, 320 

c. Interest of Lessee, 320 

12. «/oi/i£ <7/fc7 Several Interests, 321 

a. Interests of Joint Debtors, 321 

b. Interests of Tenants in Common, 322 

c. Interests of Coparceners, 323 

d. Partnership Property, 323 

VII. CAUSES OF ACTION IN WHICH ATTACHMENTS MAY 
BE HAD, 323 

A. In General, 323 

B. On Consolidation of Causes, 323 

C. Secured and Unsecured Debts and Demands, 324 

1. Rule in California and IdaJio, 324 

2. Majority Rule, 325 

3. Effect of Real Estate Mortgage, 326 

D. Debts and Demands Not Capable of Definite Ascertain- 

ment, 327 

1. In General, 327 

2. Debts or Demands Unliquidated or Uncertain, 329 

E. On Debts Not Due, 331 

1. In General, 331 

2. Unmatured Negotiable Paper, 334 

3. Procedure in Case of Attachment Before Maturity 

of Demand, 334 

F. Conditional and Contingent Demands, 334 

1. In General, 334 

2. Liability of Surety, 335 

G. Causes of Action Arising Ex Contractu, 336 

1. In General, 336 

2. What Are Actions Ex Contractu, 336 

vol. rn 



220 ATTACHMENT 

a. In General, 336 

b. Contracts for Direct Payment of Money, 338 

c. Actions for Breach of Marriage Contract, 338 

d. Actions on Implied Contracts, 339 
H. Actions Ex Delicto, 341 

1. In General, 341 

2. Actions for Wrongful Conversion, 343 

3. Causes of Action Arising Out of a Felony, 343 
I. Actions on Judgments, 343 

J. Actions on Statutory Liabilities, 344 
K. Money Demands, 344 

1. In General, 344 

2. What Are Money Demands, 344 

L. Actions To Recover Statutory Penalties, 346 
M. Causes of Action Against Non-Residents and Foreign 
Corporations, 346 

N. Suits To Enforce Liens, 347 
0. Attachment in Equity, 347 

1. In General, 347 

2. Suits for an Accounting, 349 

VIII. GROUNDS FOR ATTACHMENT, 349 

A. In General, 349 
. B. Insolvency and Indebtedness, 350 
C. Non-Residence, 351 

1. In General, 351 

2. What Constitutes Residence or Non-Residence, 351 
a. In General, 351 

\ b. Number of Residences a Debtor May Have, 354 

c. Intention, 354 

d. As Dependent on Opportunity for Service of 

Process, 355 

e. Temporary Abode or Absence, 356 

f. Place of Business, Not of Residence, 357 

g. Necessity for Acquisition of New Ddmicil or 

Residence, 358 

Vol. ni 



ATTACHMENT 221 

3. Computation of Time, 358 

4. Evidence, 359 

D. Foreign Corporations, 3G0 

E. Debts Fraudulently Contracted or Incurred, 3G0 

1. In General, 360 

2. Nature and Element of Fraud. 361 

3. What Constitutes a Fraudulent ('".drafting, 363 

4. Who Entitled to the Benefit of the Statute, 364 

5. Evidence of Fraud, 364 

6. Election of Remedies, 366 

F. Failure To Pay on Performance of Contract, 366 

G. Obligations Criminally Incurred, 366 

II. Absconding, Absence or Concealment, 367 

1. In General, 367 

2. Time of Absconding, 367 

3. 17/io Are Absconders or Absentees, 368 

a. In General, 368 

b. Non-Residents, 369 

c. Corporations, 369 

d. Persons "Not Found" After Service of Process, 

369 

e. As Dependent on Nature or Purpose of Do 

part urc, 370 

4. Concealment of Person, 372 

5. Concealment of Property, 372 

6. Removal of Person, 373 

7. Removal of Property, 374 

a. In General, 374 

b. Intended Removal, 374 

c. ^.s Determined by Amount of Property Remain- 

ing, 374 

d. WTiai Constitutes a Removal, 375 

e. Necessity of Showing Fraudulent Intent, 375 

I. Disposition of Property To Delay or Defraud Cn ditors, 

377 

Vol. Ill 



222 ATTACHMENT 

1. In General, 377 

2. Unexecuted Intention To Dispose of Property, 378 

a. In General, 378 

b. Necessity for Fraud, 378 

c. Evidence, 379 

3. Property Within Contemplation of Statute, 381 

4. Requisites and Sufficiency of Conveyance, 381 

5. Amount of Property Disposed of or Retained as 

Affecting Right To Attach, 381 

6. The Fraudulent Intent, 382 

a. Necessity for Fraudulent Intent, 382 

b. What Constitutes Fraud, 383 

c. Time of Forming Fraudulent Intent, 383 

d. Intent of Grantee or Purchaser, 384 

" 7. Transactions or Conveyances Inhibited by the Stat- 
ute, 384 

a. In General, 384 

b. Mortgages, 385 

c. Voluntary Conveyances, 387 

(I.) In General, 387 

(II.) Conveyances to Relatives, 387 

d. Conversion of Property, 388 

e. Conveyances by Agent, 388 

f. Conveyances Giving Preferences to Some Cred- 

itors, 388 

g. Transfers in Violation of Bankrupt Act, 391 
h. Dealings by Debtor With Exempt Property, 391 
i. Disposal of Property Mortgaged or Pledged, 391 
j. Transfers in Regular Course of Business, 391 
k. Assignments for Benefit of Creditors, 392 

1. - Fraudulent Judgments, 393 

m. Use of Property for Support of Family, 393 

n. Curing Fraudulent Conveyance, 393 

8. Creditors Entitled to Protection, 394 

a. In General, 394 

b. Subsequent Creditors, 394 
Vol. m 



ATTACHMENT 223 

9. Evidence, 394 
J. Estoppel, Laches and Ratification, 396 

IX. AFFIDAVIT FOR ATTACHMENT, 396 

A. Necessity for Affidavit, 396 

1. In General, 396 

2. Failure To Make Affidavit, 397 

3. Objections for Want of Affidavit, 398 

B. Operation and Effect of Affidavit, 398 

C. Who May Make Affidavits, 398 

1. In General, 398 

2. Necessity for Affiant To State His Authority, 399 

3. For a Partnership, 400 

4. For a Corporation, 400 

5. Agents or Attorneys, 401 

D. Who May Take Affidavits, 403 

1. In General, 403 

2. Interested Persons, 403 

3. Non-Resident Officers, 403 

E. Service and Filing, 405 

1. Service, 405 

2. FiKwgr, 405 

a. Necessity for, 405 

b. !V/f.a£ Constitutes, 405 

c. Time o/ W?jg, 405 

F. Form, Sufficiency and Contents of Affidavit, 405 

1. In General, 405 

2. Affidavit Used in Other Proceedings, 406 

3. Execution of Affidavit, 407 

a. Time of Making, 407 

b. By Persons in Representative Capacity, 407 

c. Entitling, 407 

d. The Oath and Signature, 408 

(I.) The Oath, 408 
(II. Signature, 408 

(III ) Effect of Want of Signature and Oath, 
408 

Vol. Ill 



224 ATTACHMENT 



e. Stamping, 408 

f. Attestation or Authentication of Affidavit, 408 

Clerical Errors and Formal Defects, 409 

a. Effect of, 409 

b. Aider by Reference t& Other Papers, 409 

Contents and Averments, 410 

a. In General, 410 

b. Requisites and Sufficiency of Averments, 411 

(I.) Upon Personal Knowledge, 411 

(II.) Upon Belief, 412 

(III.) Upon Information and Belief, 413 

(IV.) Test of Sufficiency of Averments, 414 

c. Particular Averments Considered, 415 

(I.) As to Style and Commencement of Suit, 

415 
(II.) As to Property of Defendant, 415 
(III.) As to Existence of Security, 416 
(IV.) As to Vexatious or Injurious Purpose of 

Attachment, 416 
(V.) As to Parties, 416 

(A.) Parties Plaintiff, 416 

(1.) In General, 416 

(2.) Sufficiency of Description, 

417 
(3.) As to Residence or Citizen- 
ship, 417 

(B.) Parties Defendant, 417 

(1.) In General, 417 

(2.) Corporate Defendants, 418 

(3.) Majority of Defendant, 418 

(4.) Defendant's Residence, 418 

(VI.) As to Cause of Action, 418 

(A.) In General, 418 

(B.) Sufficiency of Statement, 419 

(C.) Nature of Demand, 421 



Vol. Ill 



ATTACHMENT 

(1.) I), General, 421 

(2.) Sufficiency of Statement, 421 

(VII.) As to Indebtedness, 422 
(A.) In General, 422 
(B.) Sufficiency of Averments, 422 

(C.) Justness of Debt, 423 
(D.) Maturity of Debt, 423 
(E.) Ownership of Claim, 424 
(F.) Amount of Claim, 424 

(1.) Necessity for Stating 

Amount, 424 
(2.) Sufficiency of Averments. 

425 
(3.) Negativing Existence of 
Set-Offs or Counterclaims, 
426 
(VIII.) As to Grounds of Attachmejit, 428 
(A.) Necessity for, 428 
(B.) Requisites and Sufficiency of Aver- 
ments, 428 
(1.) Positive Averments, 428 
(2.) Allegations in Conformity 

With the Statute, 420 
(3.) Allegation of Intent, 432 
(4.) Necessity for Stating Facts 
To Support Allegation, 
433 
(C.) Statement of More Than One 
Ground, 434 

(1.) In the Conjunctive, 434 
(2.) In the Alternative or Dis- 
junctive, 434 

(D.) Statement of Same Ground in Sec- 
ond Affidavit, 435 

vol. m 



226 ATTACHMENT 

G. Amendment of Affidavit, 436 

1. Bight To Amend, 436 

2. Amendable Defects, 436 

a. In General, 436 

b. As to Parties, 438 

c- As to Averments of Nature and Amount of In- 
debtedness, 438 

3. Something To Amend by, 439 

4. At What Stage of Proceedings, 439 
H. Supplemental Affidavits, 439 

1. Bight To File, 439 

2. Scope of Supplemental Affidavits, 440 
I. Yariance, 440 

1. As to Parties, 440 

2. ^4s to Cause of Action, 440 

3. As to Amount of Claim, 441 

4. >4s tfo Grounds of Attachment, 441 

5. Immaterial Variances, 441 

6. How Availed of, 441 
J. Defects in Affidavit, 441 

1. Particular Defects, 441 

2. Who Mat/ Avail of, 442 

3. Time of Baising Objections, 442 

a. In General, 442 

b. Exceptions and Objections in Appellate Court, 

442 

4. Marnier of Baising Objections, 442 

5. Specifying Objections, 442 

6. ^ec^ o/ Defects, 442 

7. Waiter o/ Objections, 443 

a. in General, 443 

b. 2??/ Appearance and Plea, 443 

8. Collateral Attack, 443 
Vol. Ill 



ATTACHMENT 227 

X. BOND OR UNDERTAKING, 443 

A. Necessity for, 443 

1. In General, 443 

2. Failure To Return and FUe, 145 

3. Exceptions to the Rule, 445 

a. Zw Gt neral, 445 

b. J.S to Son-Resident Defendants, 445 

B. Effect of Failure To Give, 446 
( '. Assignability, 4 17 

D. Parties, 447 

1. By Whom To Be Given, 447 

a. General Statement, 447 

b. Attorney or Agent, 447 

c. Firm or Partner, 448 

2. To Wftom To 7?e Given, 448 

3. Description of Parties, 449 

E. Kme When Bond Must Be Given, 449 

F. Amount, 450 

1. 7» General, 450 

2. Discretion of Court or Cleric, 451 

3. Double Amount of Claim or Properly Levied Upon, 

452 

4. Dependency Upon Affidavit, 453 

G. 



II. 



Form, 453 


1. 


In General, 453 


2. 


Conditions, 45 I 


3. 


77»e Signature, 455 


4. 


77<e .£eaZ, 456 


5. 


Approval, 457 


Sto 


relies, 458 


1. 


A'f cessity for, 458 


2. 


Who il/ay Become Sureties, 458 


3. 


Residence, 458 


4. 


Number, 458 


5. 


Sufficiency of Security, 459 


6. 


Justification, 459 



vol. rn 



228 ATTACHMENT 

I. Defects, Objections and Amendments, 460 

1. Defects, 460 

2. Objections, 460 

a. ' Bond Good Until Objection, 460 

b. Time for Objection, 461 

c. Who Can Object, 461 

3. Amendments, 462 

a. In General, 462 

b. W/mi May or May Not Be Amended, 462 

c. Effect of Amendment, 464 

XI. WRIT OR WARRANT OF ATTACHMENT, 464 

A. Definition and Nature, 464 

B. Issuance of Writ or Warrant, 464 

1. Definitions, 464 

2. Nature of Act of Issuance, 464 

3. Who May Grant or Issue, 464 

a. Zw General, 464 

b. Persons Interested in the Proceedings, 465 

c. Notaries, 466 

d. Sheriff or Deputy, 466 

e. Judicial Officers, 466 

(I.) Zw General, 466 

(II.) Order o/ Allowance, 466 

f. Court of Commissioners, 467 

g. C7er&s o/ Cowrf, 467 

4. In TWiose iVame Issued, 468 

5. Kme o/ Issuance, 468 

a. Zn General, 468 

b. Terwis o/ C<wr£, 468 

c. On Sundays and Holidays, 468 

_d. Prior to the Commencement of the Action, 469 

e. Proceedings Against Non-Residents, 470 

f. With Reference io Issuance or Filing of Olhei 

Papers, All 

6. Order of Issuance, 471 

7. Record of Issuance, 471 

8. Whence Issued, 472 

Vol. ni 



ATTACHMENT 229 

C. Form, Sufficiency and Contents, 472 

1. In General, 472 

2. Execution and Authentication of Writ, 472 

a. Annexing Affidavit to ]\'rit, 472 

b. Date, 472 

c. Signature, 472 

(1. Endorst ment, 473 

e. $eaZ, 473 

f. Attestation, 473 

g. Presumptions as to Due Execution, 473 

3. Style, Address and Command, 474 

a. Style, 474 

b. Address, 474 

4. Recitals and Averments, 475 

a. Description of Parties, 475 

b. Necessity To Allege Residence of Plaintiff, 475 

c. Description of Property To Be Levied Upon, 475 
el. Statement as to Affidavit, 476 

e. Statement as to Grounds of Attachment, 477 

f. Statement as to Cause of Action, 478 
(I.) In General, 478 

(II.) As to Performance of Preccdi nt Condi- 
tions, 479 
(III.) Statement as to Amount, 470 

g. Recitals as to Giving or Filing Bond, 430 

D. Service and Return, 480 

1. Service, 480 

2. Return, 480 

E. Alterations, 482 

F. ##ectf o/ Invalidity, 4S2 

G. Objections, 482 
H. Amendments, 483 

1. General Statement, 483 

2. Illustrations, 485 

Vol. in 



230 ATTACHMENT 

XII. EXECUTION, 488 

A. Levy Essential, 488 

B. The Officer, 489 

1. General Authority, 489 

2. Officer to Whom Writ Is Directed, 491 

3. Person Specially Appointed, 491 

4. Possession of Process, 492 

5. Time of Levy, 492 

C. The Property, 493 

1. Defendant's Property, 493 

2. Property Designated, 493 

3. Property Previously Levied on, 494 

a. #£/ Same Officer, 494 

b. 7>i/ Different Officers, 495 

c. Effect of Taking Receipt or Delivery to Bailee, 

497 

4. Property on Which There Was a Previous Attempt 

To Levy, 498 

5. Joint and Several Interests, 498 

6. Leaseholds, 499 

7. Amount', 499 

D. Manner of Levy, 501 

1. Zn General, 501 

2. Tested by Comparison With Execution, 502 

3. Entry on Premises, 502 

4. 7>i Presence of Witnesses, 503 

5.' On Real Property in Particular, 503 

a. In General, 503 

b. Under Statutory Provisions Generally, 505 

c. Description of Property, 510 

6. On Personal Property in Particular, 511 

Vol. m 



ATTACHMENT 231 

a. In General, 511 

b. Property in Possession of Third Person, 519 

c. Property Under Lock and Key, 522 

d. Filing of Writ and Return, 523 

e. Mortgaged Personal Property, 524 

f. liights Under Contracts, 525 

g. Shares of Stock, 528 
h. Machinery, 528 

i. Farm Produce, 529 

E. Inventory and Appraisal, 529 

1. In General, 529 

2. The Appraisers, 531 

3. Oa//i of Appraisers, 531 

4. Description of Property, 531 

5. Signing, 531 

6. Valuation of Property, 532 

F. Service and Notice of Process or Levy, 532 

1. .In General, 532 

2. Notice Without Levy, 535 

3. Who Must Serve, 535 

4. Description of Property, -535 

5. Time of Service, 536 

6. On Officer or Agent of Corporation, 536 

7. Serving Notice on Defendant or Leaving Copy at 

Defendant's Residence, 536 

8. Service on Occupants of Property, 538 

9. Posting, 540 

10. Notice by' Publication, 541 

XIII. THE RETURN, 541 

A. In General, 541 

B. To What Court Return To Be Made, 542 

C. P>y Whom Return To Be Made, 543 

D. Time To Make Return, 543 

E. Sufficiency of Return, 545 

1. In G( n< rat, 545 

a. The Return Must Be Full and Intelligible, 545 

b. Amendments, 546 

c. Presumption, 549 

Vol. Ill 



232 ATTACHMENT 

2. As to Personal Property in Particular, 552 

3. As to Real Property in Particular, 554 

4. As to Statutory Requirements of Service of Process 

or Notice, 557 

5. Signature and Verification, 559 

6. Aider by Extrinsic Evidence, 560 

F. Return as Evidence, 560 

1. In General, 560 

2. Conclusiveness, 561 

XIV. HOW THE PROPERTY MUST BE KEPT AND DIS- 
POSED OF, 564 

A. Accountability of Officer, in General, 564 

B. Expense of Care and Sale, 567 

C. Surrender on Receiving Security, 570 

D. Sale, 575 

- 1. The Right To Sell, 575 

2. Perishable Property, 577 

3. Conduct of Sale, 580 

a. Compliance With Law, 580 

b. Time of Sale, 580 

c. Notice, 580 

d. Employment of Auctioneer, 581 

e. Cash or Credit, 581 

f. Sales En Masse, 582 

4. Return and Confirmation, 582 

5. Resale and Redemption, 582 

6. Rights of Purchaser, 582 

7. Disposition of Proceeds, 583 

a. General Rules, 583 

b. Different Creditors, 586 

E. Actions for Interference With Possession, 587 

XV. THE LIEN, 589 

A. Nature of Lien, 589 

B. When Lien Attaches, 592 

C. How Long Lien Continues, 597 

D. To What the Lien Extends, 600 

E. Priorities, 603 
Vol. m 



ATTACHMENT 23 3 

1. In General, 603 

2. Several Attachments, 604 

a. In General, 604 

b. Under Statutes Providing for Pro Rata Distri- 

bution, 611 

c. Invalidity of First Attachment. 612 

d. Several Levies at Same Time, 615 

3. As Between Attachments and Other Liens and Con- 

veyances, 617 

a. In General, 617 

b. Conveyance of Real Property, 620 

c. Sale of Personal Property, 625 

d. Mortgages, 626 

e. Assignments, 627 

f. Bearing of Notice, 629 

g. Garnishment, 632 
h. Other Suits, 633 

4. For the Determination of the Court, 638 

F. Waiver, Abandonment or Forfeiture, 639 

1. General Rules, 639 

2. Miscellaneous Rulings, 640 

3. Surrender of Possession by Officer, 642 

4. Laches, 644 

5. The Bearing of Form of Judgment or Execution, 645 

6. Return of Nulla Bona, 646 

G. Restoration of Lien, 647 

XVI. PROCEEDINGS TO ENFORCE CLAIMS OF THIRD PER- 
SONS, 648 

A. Election of Remedies, 648 

B. Replevin, 648 

C. Trover, 649 

D. Detinue, 649 

E. Trespass, 649 

F. Filing Claims Under Original Proceedings, 649 

G. Notice and Demand, 651 
II. Intervention, 656 

I. The Proceedings, 662 

vol. m 



231 ATTACHMENT 

1. In General, 662 

2. Pleadings, 663 

3. 77ie Evidence, 665 

4. Instructions, 668 

5. Z7ie Verdict, 669 

6. Judgment, 669 

J. Bond /or Possession of Property, 671 

XVII. THE ACTION, 672 

A. Service of Process, 672 

1. 7a General, 672 

2. Publication, 682 

a. General Requisites, 682 

b. T^orm o/ Notice, 690 

B. Appearance, 692 

1. Et'^M To Appear, 692 

2. Time of Appearance, 692 

3. Effect of Appearance, 694 

4. WTiatf Is «n Appearance, 696 

C. Declaration, Petition or Complaint, 700 

1. Generally Essential, 700 

2. Form and Allegations, 700 

a. Form in General, 700 

b. Substance of Complaint, 703 
(I.) Zn General, 703 

(II.) Cause o/ Action, 704 

(III.) Grounds of Attachment, 700 

(IV.) Amount of Demand, 707 

c. WTten Complaint Must Be Filed, 708 

d. 7/ Complaint Subject to Demurrer, 710 
3. Amendment, 712 

vol. ni 



ATTACHMENT 235 

D. Plea or Answer, 718 

E. The Trial, 720 

1. In General, 720 

2. Verdict, 721 

F. The Judgment, 724 

1. Lien of Judgment, 724 

2. Direction for Sale, 731 

3. Araoim* o/ Judgment, 736 

4. Default, 736 

5. Setting Aside, 737 

G. Execution, 738 

XVIII. MISCELLANEOUS PROCEEDINGS SUPPLEMENTING 
ATTACHMENT, 739 

A. 7m Federal Courts, 739 

B. Examination of Defendant, 739 

C. Certificate or Examination of Third Party, 740 

D. Actions by Officer, 742 

E. Actions by Plaintiff, 745 

F. Injunction, 746 

XIX. PROCEEDINGS FOR VACATING ATTACHMENT, 747 

A. Irregidarities in General, 747 

B. Before What Tribunal, 749 

C. Various Reasons for Which Discharge May Be Asked, 

750 

1. Lack of Jurisdiction in General, 750 

2. Objections Relating to the Affidavit, 751 

3. Defects in the Writ, 756 

4. Matters Relating to Service and Return, 758 

5. Variance, 759 

6. Matters Relating to the Bond, 762 

Vol. m 



236 ATTACHMENT 

D. Who May Ask for Discharge, 763 

E. The Motion, 771 

1. Time When Application May Be Made, 111 

2. How Many Motions May Be Made, 776 

3. Notice, 776 

4. Form, 779 

5. Trial, 781 

a. A Question of Law, 781 

b. The Issues, 783 

c. #io//ti To Open and Close, 787 

d. Burden of Proof, 787 

e. Nature of the Evidence, 790 

f. The Judgment, 794 

g. Rehearing, 796 
F. FZea or Awswer, 796 

1. Nature of the Procedure, 796 

2. Pendency of Another Action, 797 

3. Tune When Plea May Be Filed, 793 

4. Sufficiency of Plea, 800 

5. T/ie Issues, 804 

6. T/ie Tn'aZ, 805 

7. Burd'en of Proof, 806 

8. r/ie Verdict, 807 

9. ZVie Judgment, 808 

G. As fo Matters Arising Subsequent to the Attachment, SOS 
Vol. Ill 



ATTACHMENT 2 37 

1. Bankruptcy and Insolvency, 809 

2. Assignment for Benefit of Creditors, 803 

r' 

3. Reference, 811 

4. £><?aM o/ a Par^j/, Sll 

5. ZYiaZ Judgment, 813 

6. Amendments, 814 -._ 

7. Failure To Observe Statutory Dire* '<> Sale, 

816 

8. Repeal of Statute, 817 

9. Ad of Plaintiff, 817 

10. Miscellaneous Considerations, 819 

H. Statutory Provisions as to Bonds, 820 
I. Effect on the Action, 822 

XX. REVIEW, 824 

A. Orders Vacating Attachments, 824 

B. Orders Denying Motion To Vacate, 831 

C. Judgment on Plea i-n Abatement, 834 

D. Order Made After Judgment in the Action, 83G 

E. Objections Not Raised in Trial Court, 837 

F. What Questions Are Reviewable, 839 

G. The Record, 842 

II. Effect on Lien, 844 

CROSS REFERENCES: 

Execution; Garnishment. 

As to liability for wrongful attachment, see the title 

".Malicious Prosecution." 

vol. nr 



238 



ATTACHMENT 



I DEFINITION. — An attachment is an extraordinary remedy, an- 
cillary to an action at law, whereby, before judgment, a contingent lien 
is acquired on the property of a debtor to secure any judgment which 
may be recovered against him in the action. 1 



1. Ark. — Ferguson v. Glidewell, 48 
Ark. 195, 2 S. W. 711. Cal.— Myers v. 
Mott, 29 Cal. 359, 89 Am.- Dec. 49; 
Allender V. Fritts, 24 Cal. 447; Nail 
v. Superior Court, 11 Cal. App. 27, 103 
Pac 902. Colo. — Crisman v. Dorsey, 12 
Colo. 567, 21 Pac. 920, 4 L. R. A. 664. 
Conn.— Morgan v. New York Nat. Bldg., 
etc. Assn., 73 Conn. 151, 46 Atl. 877; 
Hollister v. Goodale, 8 Conn. 332. Ind. 
United States Capsule Co. v. Isaacs, 
23 Ind. App. 533, 55 N. E. 832. Ind. 
Ter.— McFaddin v. Blocker, 2 Ind. Ter. 
260, 48 S. W. 1043, 58 L. R. A. 878. 
la. — Bowen v. Port Huron Engine, etc. 
Co., 109 Iowa 255, 80 N. W. 345, 77 Am. 
St. Rep. 539, 47 L. R. A. 131. Kan.— 
Bishop v. Smith, 66 Kan. 621, 72 Pac. 
220. Neb. — Reed v. Maben, 21 Neb. 
696, 33 N. W. 252. N. H— Bryant v. 
Warren, 51 N. H. 213. N. J.— Leonard 
v. Stout, 36 N. J. L. 370. N. Y.- 
Sjahundt v. Calm, 3 Alb. L. J. 389. 
Ohio. — Rempe & Son v. Ravens, 68 Ohio 
St. 113, 67 N. E. 282. Ore.— Sheppard 
V. Yocum, 11 Ore. 234, 3 Pac. 824. 
Vt.— Clark V. Patterson, 58 Vt. 676, 5 
Atl. 564. Wis.— Madison First Nat. 
Bank v. Greenwood, 79 Wis. 269, 45 
N. W. 810, 48 N. W. 421. 

The judgment establishes the exist- 
ence of the demand upon which the at- 
tachment is predicated and the se- 
curity taken; whereas, before, it was 
only alleged and presupposed for the 
purpose of the security. Kittredge V. 
Warren, 14 N. H. 509, quoted in Nail v. 
Superior Court, 11 Cal. App. 27, 103 
Pac. 902. 

A Remedy for the Collection of a 
Debt. — Evans-Snider-Buel Co. V. Mc- 
Fadden, 105 Fed. 293, 44 C. C. A. 494, 58 
L. R. A. 900. And see Courtney v. 
Pradt, 160 Fed. 561, 87 C. C. A. 463. 

"An order of attachment is an execu- 
tion by anticipation." Delaplain V 
Armstrong, 21 W. Va. 211. See also 
Patterson v. Perry, 10 Abb. Pr. (N. Y.) 
82; Rempe & Son v. Ravens, 68 Ohio 
St. 113, 67 N. E. 282. 

As a Species of Distress. — "At com- 
mon law an attachment, as part of the 
service of process in a civil suit, is a 
species of distress, in which the effects 
attached were the ancient vadii or 

vol. in 



pledges. When the defendant did not 
appear on a summons to answer to the 
plaintiff, an attachment issued, and his 
chattels were seized by the sheriff to 
compel his appearance; but when he 
had appeared, he was entitled to his 
chattels in the same plight in which 
they were attached; if he did not ap- 
pear, but made default, the chattels 
attached were forfeited." Bond v. 
Ward, 7 Mass. 123, 5 Am. Dec. 28. 

A judgment lien is not an attach- 
ment. Beardsley v. Beecher, 47 Conn. 
408; Tefft v. Providence Washington 
Ins. Co., 19 R. I. 185, 32 Atl. 914, 61 
Am. St. Rep. 761. 

Foreign and Domestic Attachments. 
Foreign attachment is a remedy 
against debtors that are absent and 
non-resident, while domestic attach- 
ment is a remedy against resident debt- 
ors absconding or concealing them- 
selves. Fuller v. Bryan, 20 Pa. 144. 

In Leach v. Cook, 10 Vt. 239, the 
court said that foreign attachment, 
under the statutes, lies in three classes 
of cases. (1) When the debtor keeps 
concealed; (2) When he has absconded 
or removed; or (3) When he never 
resided within the state. See also 
generally, infra, VIII. 

The custom of London was foreign 
attachment. 

"The difference between an attach- 
of personal property and a garnish- 
ment is very great. In the former 
the property attached is actually tak- 
en into the possession of the officer 
holding the writ, and is under his cus- 
tody and control, while in garnish- 
ment proceedings the property is left 
in the hands of the garnishee." Santa 
Fe Pac. R. Co. v. Bossut, 10 N. M. 
322, 62 Pac. 977. 

Attachment Distinguished From Ex- 
ecution. — Attachment is mesne process, 
execution final. A writ of attachment 
has the characteristics of an execution 
in its first stage. Covell v. Heyman, 
111 U. S. 176, 4 Sup. Ct. 355, 28 L. ed. 
390; Herman Goepper & Co. v. Phoe- 
nix Brew. Co., 25 Ky. L. Rep. 84, 74 
S. W. 726. 

An attachment and conveyance un- 
der it are equivalent to an execution 



ATTACHMENT 



2W 



II.. INTRODUCTION EXPLANATORY OF TEE PROCEEDING. 

A. — Origin of the Proceeding. — Attachment laws had their origin in 
the local custom which existed in London, Exeter, and, perhaps, in a 
few other cities of England. 2 

The procedure was entirely governed by the special custom, and 
further than this was unknown to the common law. In the United 
States the remedy is purely statutory. 3 

B. Nature of the Proceeding. — 1. In General. — The provisional 
remedy, by attachment is in the nature of process of execution, and 
amounts to an execution in advance of trial and judgment. 4 

2. As in Personam or In Rem. — An attachment proceeding is in 
personam when there has been service upon the defendant, on his per- 
son, at his domicil or last residence, or a general appearance by the 



executed. Inglis v. Sailors' Snug Har- 
bor, 3 Pet. (U. S.) 99, 7 L. ed. 617, per 
Mr. Justice Johnson. 

Attachment and Process in Admiral- 
ty Distinguished. — The process of at- 
tachment is not a proceeding in rem, 
as known and practised in admiralty, 
and does not bear any analogy to such 
a proceeding, "as the suit in all such 
cases is a suit against the owner of 
the property and not against the prop- 
erty as an offending thing, as in case 
where the libel is in rem in the Ad- 
miralty Court to enforce a maritime 
lien in the property." Leon v. Gal- 
ceran, 11 Wall. (U. S.) 185, 20 L. 
ed. 74. 

Attachment and Detinue. — "In both 
acts of enforcing rights through writs 
of execution and attachment the plaint- 
iff's attitude and insistence is, and 
must be, that the property right in 
and the right to the possession of the 
personalty is not primarily in him, the 
plaintiff. In the detinue suit the 
plaintiff's attitude and insistence is, 
and must be, that he has a property 
right, general or special, in the chat- 
tel, and is entitled to the immediate 
possession thereof. In the former suit 
the actor's effort is to subject the 
chattel to the satisfaction of his de- 
mand, and in the latter the effort is 
to obtain possession of the chattel. In 
one the possession, as between the par- 
ties litigant, is the point of conten- 
tion, and in the other judicial power is 
invoked, not to transpose the possession 
between the parties, but to convert 
the chattel into a means of satisfac- 
tion of a demand." Johnson v. New 
Enterprise Co., 163 Ala. 463, 30 So. 911. 



2. 1 Poll. Ab. 552; 1 Com. Dig. 
580; Chicago, etc., R. Co. v. Sturm, 
174 U. S. 710, 17 Sup. Ct. 797, 43 L. 
ed. 1144; McClenachan v. McCarty, 1 
Dall. (U. S.) 375, 1 L. ed. 183. 

3. U. S. — Fisher v. Consequa, 2 
Wash. C. C. 382, 9 Fed. Cas. No. 4,816. 
111. — Hannibal, etc., P. Co. l>. Crane, 
102 111. 249, 40 Am. Rep. 581. Mass- 
Bond v. Ward, 7 Mass. 123, 5 Am. Dec. 
28. N. J.— Welsh t>. Blackwell, 14 N. 
J. L. 344. S. C— Blair v. Morgan, 59 
S. C. 52, 37 S. E. 45, per Mclver, C. 
J., dissenting. Tex. — Kildare Lumb. 
Co. 1?. Atlanta Bank, 91 Tex. 95, 41 S. 
W. 64. 

And see many of the cases cited 
throughout this article, especially those 
having reference to the causes in 
which attachments may be issued and 
the necessity of compliance with the 
statutory provisions, and also as to 
the construction of statutes. 

At Common Law. — "The practice of 
attaching the effects of a defendant, 
and holding them to satisfy a judg- 
ment, which the plaintiff may recover, 
when, perhaps, judgment may be for 
the defendant, is unknown to the com- 
mon law, and is founded on our stat- 
ute law, explained by an usage found- 
ed in the ordinances in force under 
the colonial charter." Bond v. Ward, 
7 Mass. 123, 5 Am. Dec. 28. 

The jurisdiction is special and ex- 
traordinary and is limited by the stat- 
ute, m.— Haywood r. Collings, 60 111. 
328. Md. — Boarman r. Patterson, 1 
Gill 372, 381. Mich.— Estlow v. HaEna, 
75 Mich. 219. 42 N. W. 812. 

4. Ark. — McGuire & Co. v. Barn- 
hill, 89 Ark. 209, 115 S. W. 1144. 

vol. in 



240 



ATTACHMENT 



defendant, 5 or when, under the statute, it is a means adopted for en- 
forcing the debtor's appearance. 6 It is, however, in the nature of an 
action in rem when commenced upon substituted service and there has 
been no personal service, and when the defendant has not entered a 



Ohio. — Ward & Co. V. Howard, 12 Ohio 
St. 158. S. D. — Deering, etc., Co. V. 
Warren, 1 S. D. 35, 44 N. W. 1068. 

Without Process -or Garnishment. — 
If the levy of an attachment, like 
that of an execution, is made as upon 
the landi and tenements of the debtor, 
its operation is no greater than the 
levy of an execution. It has the like 
effect before judgment that an exe- 
cution has after judgment. Shorten 
V. Drake, 38 Ohio St. 76, 85-86. 

5. Ky.— Brand v. Brand, 116 Ky. 
785, 76 S. W. 868; Duncan v. Wick- 
liffe, 4 Met. 118. La.— Williams v. 
Kimball, 8 Mart. (N. S.) 351, hold- 
ing that the action is an ordinary one 
in personam, and the service of the 
attachment is a mere incident in the 
suit. Miss.— Lester v. Watkins, 41 
Mass. 647; Philips v. Hines, 33 Miss. 
163; Miller v. Ewing, 8 Smed. & M. 
421. Tex.— Green v. Hill, 4 Tex. 465. 
Wis. — Madison First Nat. Bank v. 
Greenwood, 79 Wis. 269, 45 N. W. 
810, 48 N. W. 421. 

Attachment Against Resident De- 
fendant. — Ala. — Betancourt v. Eber- 
li5n, 71 Ala. 461. Mo. — Bachman v. 
Lewis, 27 Mo. App. 81. N. M.— South- 
ern Cal. Fruit Exch. V. Stamm, 9 N. 
M. 361, 54 Pac. 345. 

Not Strictly In Rem. — Chevallier v. 
Williams & Co., 2 Tex. 239. "A 
proceeding to enforce the pay- 
ment of a debt or demand by attach- 
ment against the defendant's personal 
property within the jurisdiction of the 
court partakes in its nature and char- 
acter of a proceeding in rem and also 
of an action in personam. If the de- 
fendant is served within the jurisdic- 
tion, or appears generally, the pro- 
ceeding is in the nature of a personal 
action. He is liable in such case to 
a personal judgment, if the indebted- 
ness is established, irrespective of the 
property seized, with the added inci- 
dent that the property attached re- 
mains liable under the control of the 
court to answer to the demand estab- 
lished against the defendant by the 
final judgment of the court. If there 
be no such service or appearance of 
the defendant, then the proceeding is 

vol ni 



in its nature in rem, or, more accu- 
rately speaking, quasi in rem, the only 
effect of which is to subject the prop- 
erty attached to the payment of the 
demand which the court may find to 
be due to the plaintiff. The attach- 
ment does not bring the defendant in- 
to court. Its object is to give the 
plaintiff execution against the thing 
attached. And where there is no serv- 
ice within the jurisdiction, and not ap- 
pearance, the judgment, of course, 
cannot go beyond the property at- 
tached. The proceeding in such case 
being against the property, if the at- 
tachment be set aside the res is gone ; 
and if there be no service or appear- 
ance, the jurisdiction of the court to 
further proceed is also gone. If, how- 
ever, the defendant has been served, 
or has generally appeared in the case, 
its jurisdiction is retained though the 
attachment is dissolved. These views 
are statements of mere elementary 
principles and are supported by the 
following authorities and cases: 
Brown on Jurisdiction, §§59, 71, 72; 
Bailey on Jurisdiction, 220, 221; Coop- 
er v. Reynolds, 10 Wall. 308, 19 L. 
ed. 931; Freeman v. Alderson, 119 U. 
S. 185, 7 Sup. Ct. 165, 30 L. ed. 372; 
Pennoyer v. Neff, 95 U. S. 714, 24 L. 
ed. 565." Griffin Co. v. Howell (Utah), 
113 Pac. 326, 328. See also Bishop 
v. Fennerty, 46 Miss. 570; Goldmark v. 
Magnolia Metal Co., 65 N. J. L. 341, 
47 Atl. 720. 

A Foreign Attachment Is in the First 
Distance a Proceeding In Rem.— It 
may be converted into a suit in per- 
sonam by the absent debtor coming 
in and entering special bail to the 
action. Until that is done it contin- 
ues to be in rem. Stanley v. Stanley, 
35 S. C. 94, 14 S. E. 675, quoting from 
Shooter v. McDuffie, 5 Rich. L. (S. 
C.) 63. To the same effect, see Coop- 
er v. Revnolds, 10 Wall. (U. S.) 308, 
19 L. ed*. 931. 

6. Albany City Ins.. Co. v. Whit- 
ney, 70 Pa. 248, wherein the court 
said that "foreign attachment is but 
a process by which to commence a 
personal action. It seizes property to 
compel an appearance. It can be 



ATTACHMENT 



241 



general appearance. 7 However, strictly speaking, such a suit is not a 
proceeding in rem, as the object of a proceeding purely in rem is to 
ascertain the right of every possible claimant, while limited proceedings 
in rem are not based on any allegation that the right of property is to 
be determined between any other persons than the parties to the suit." 



dissolved upon entering bail, and when 
dissolved, the judgment against the 
defendant is in personam." See also 
Perkins v. Norvell, 6 Humph. (Tenn.) 
151, pointing out that though the prop- 
erty attached will be held for the sat- 
isfaction of the debt, if the debtor 
does not appear and replevy, the at- 
tachment is a means adopted for the 
security of the creditor, and for en- 
forcing the debtor's appearance. 

7. U. S. — Cooper v. Reynolds, 10 
Wall. 308, 19 L. ed. 931; Calderhead v. 
Downing, 103 Fed. 27. Ala.— De Ar- 
man V. Massey, 151 Ala. 639, 44 So. 
688. Cal. — See Wait v. Kern River 
Min., etc., Co.j 157 Cal. 16, 106 Pac. 98, 
per Angelotti, J. la. — Elliott v. Stev- 
ens & Co., 10 Iowa 418; Wilkie v. 
Jones, Morris 97. Kan. — Jessup v. 
Atchison, etc., R. Co., 79 Kan. 429, 
100 Pac. 472. La. — Broughton v. King, 
2 La. Ann. 569; Williams v. Kimball, 
8 Mart. (N. S.) 351. Me.— Eastman v. 
Wadleigh, 65 Me. 251, 20 Am. Rep. 
695. Md — Brent v. Taylor, 6 Md. 58. 
Mass. — Merriman V. Currier, 191 Mass. 
133, 77 N. E. 708. Miss.— Crump v. 
Wooten, 41 Miss. 611. N. J.— Bain- 
bridge V. Allen, 70 N. J. Eq. 355, 61 
Atl. 706. N. M. — Southern Cal. Fruit 
Exch. v. Stamm, 9 N. M. 361, 54 Pac. 
345. Ohio. — Taylor v. McDonald, 4 
Ohio 150. Ore. — Katz v. Obenchain, 48 
Ore. 352, 85 Pac. 617, 120 Am. St. 
Rep. 821; Winter v. Norton, 1 Ore. 42. 
Utah.— Bristol v. Brent, 103 Pac. 1076. 
Can. — Stabb's Assignees v. Stabb's 
Trustees, Newf. L. Rep. (1817-1828) 
267. 

"The process of attachment, as it 
existed under the common law, differed 
in its nature and object from the pro 
visional remedy now known by that 
name. Its original purpose was to ac- 
quire jurisdiction of the defendant by 
compelling him to appear in court 
through the seizure of his property, 
which he forfeited if he did not ap- 
pear, or furnish sureties for his ap- 
pearance. (3 Bl. Com. 280; 1 Rolle, 
Abr. Customs of London, K. 13; Knee- 
land, Attachm. §6; Drake, Attachm. 
55; Ashley, Attachm. 11; Locke, For- 



eign Attachm. 12.) It was part of 
the service of process in a civil action 
through a species of distress, in which 
the goods attached were the ancient 
vadii or pledges. (Bond v. Ward, 7 
Mass. 123, 128; Gilbert, Law Distress, 
24.) As said in the case last cited: 
'The practice of attaching the effects 
of a defendant, and holding them to 
satisfy a judgment, which the plaint- 
iff may recover, when, perhaps, judg- 
ment may be for the defendant, is un- 
known to the common law, and is 
founded on our statute law.' Its pres- 
ent purpose is not to compel appear 
ance by the debtor, but to secure the 
debt or „claim of the creditor. It 
is a proceeding in rem." Pennvar v. 
Kelsey, 150 N. Y. 77, 44 N. E. 788, 
34 L. R. A. 248, per Vann, J. 

As to application of doctrine of 
res judicata, see the title "Former 
Adjudication." 

The combined effect of two statutes, 
one giving an attachment as auxiliary 
to a suit commenced by process against 
the person to secure a sufficient fund 
for the payment of the judgment, to 
be recovered against the defendant in 
personam and the other giving an 
attachment in rem, to subject all the 
property of non-residents and abscond- 
ing debtors to distribution among all 
their creditors, "is to enable a cred- 
itor, whenever he can bring his debtor 
into court by personal service, to se- 
cure his own debt by attachment; and 
as others had equal opportunity, he 
gets the benefit of his superior dili- 
gence. But if personal service cannot 
be had, so that no one is in fault, but 
all equally unfortunate, then notice 
must be given, and all may come in 
and have distribution." Winter v. 
Norton, 1 Ore. 42, 44. 

8. TJ. S. — Mnnkin t'._ Chandler, 2 
Brock, 125, 16 Fed. Cas. No. 9,030. 
Mich.— Hale t\ Chandler, 3 Mich. 531. 
Mo.— McCord, etc., Merc. Co. r. Bet- 
ties. 58 Mo. App. 384. Pa.— Megee 
V. Rcirne, 39 Pa. 50. Vt.— Woodruff v. 
Taylor, 20 VU 65. Wis. — Madison 
First Nat. Bank p. Greenwood, 79 Wis. 
269, 45 N. W. 810, 48 N. W. 421. 

vol. in 



242 



ATTACHMENT 



3. As an Original Proceeding.— Under the statutes and the system 
of practice which formerly generally prevailed, and which authorized 
the seizure of the property of a debtor who, by reason of non-residence 
or flight, could not be served personally with process, the proceeding 
was in the form or nature of an original or judicial attachment. 9 In 
some jurisdictions, the class of attachments which are issued on the 
ground that the defendant is a non-resident or an absconding debtor, 
and upon whom notice is served by publication, seems still to be under- 
stood as original attachments, as distinguished from attachments 
against residents, issued on a ground involving fraud on the part of the 
debtor, and upon whom process can and must be personally served, or 
against non-residents or absconding debtors who have entered an ap- 
pearance. 10 



The doctrine of the maritime law 
"is not applicable to a statutory at- 
tachment. The real suit is in favor 
of and against individual persons. 
The property itself is, in no sense of 
the word, a party to the suit, but is 
brought before the court as ancillary 
or in aid of the remedy against tha 
real party, who is presumed to be 
the owner of it." (Bray v. McClury, 
55 Mo. 128.) But in the dissenting 
opinion in this case it is said that 
"Attachment suits founded upon con- 
structive service are essentially in the 
nature of proceedings in rem, and the 
seizure of the property, or obtaining 
possession of the res, is, therefore, 
the basis of the court's jurisdiction." 

"A proceeding upon attachment un- 
der the Virginia statute, as to the par- 
ties bound by it, has the effect of a 
suit in equity to enforce a trust or 
lien, rather than a proceeding in the 
English exchequer or admiralty against 
personal property, without specified 
parties, to which, however, all persons 
are deemed parties. The attachment 
and subsequent proceeding holds and 
disposes of the rights of the parties 
who have appeared, absolutely, and of 
those who have not appeared, but 
against whom publication has been 
made, subject to their appearance and 
the assertion of their rights as author- 
ized." Houston v. McCluney, 8 W. 
Va. 135. 

9. Egan V. Lumsden, 2 Disney 
(Ohio) 168; Elliott v. Jackson, 3 Wis. 
649. 

In actions ex contractu, an attach- 
ment, as an original process, will lie; 
and a proper levy and return, with pub- 
lication, is sufficient to confer on the j 
court jurisdiction of the cause, and 

vol m 



authorize it to proceed to final judg- 
ment, as if the defendant was in court 
by personal service. But the ancillary 
attachments in actions, both in form 
ex contractu and ex delicito, are sub- 
sidiary or mesne process, and not op- 
erative to bring the party before the 
court. Swan v. Roberts, 2 Coldw. 
(Tenn.) 153, 158. 

The levy of an attachment on per- 
sonalty which is exempt, cannot af- 
fect the defendant's exemption, but 
the levy, although it be released on 
that account, will bring the defendant 
before the court. Hadley V. Bryars, 
58 Ala. 139. 

10. Ala. — Reynolds & Elston v. Cul- 
breath, 14 Ala. 581. N. M.— Southern 
Cal. Fruit Exch. v. Stamm, 9 N. M. 
361, 54 Pac. 345. Tenn.— Warner v. 
Yates & Co., 118 Tenn. 548, 102 S. 
W. 92. 

Where an attachment is sued out on 
the ground of the non-residence of the 
defendant, and a judgment in rem 
alone is sought, there is but one suit, 
and that the attachment. Southern 
Cal. Fruit Exch. v. Stamm, 9 N. M. 
361, 54 Pac. 345. 

Where process is served upon the 
person, the attachment is auxiliary 
process. Hillman v. Anthony, 4 Baxt. 
(Tenn.) 444. 

A Maryland statute providing that 
attachments may be issued against non- 
residents or absconding debtors in 
cases arising ex contractu where the 
damages are unliquidated, and in ac- 
tions for wrongs independent of con- 
tract, upon a declaration verified by 
affidavit and a bond, and that the prac- 
tice shall in all other particulars con- 
form to the practice and proceedings 
against non-residents and absconding 



ATTACHMENT 



243 



4. As an Ancillary Proceeding. — Under the codes and modern 
statutes it is generally held that the remedy by attachment is not an 
independent, distinct proceeding, but is merely incident to, and in aid 
of, the main action which is commenced concurrently with or before 
the proceeding in attachment. 11 



debtors in action ex contractu for 
liquidated damages, has relation to an 
original, and not to an ancillary pro- 
ceeding. Steuart v. Chappell, 100 Md. 
538, 60 Atl. 625. 

In North Carolina it has recently 
been held that an attachment proceed- 
ing, when the defendant is not within 
reach of the process of the court and 
cannot be personally served, may be 
commenced by the filing of the affi- 
davit, to be followed by publication. 
This decision seems to place this class 
of attachments back "among those au- 
thorized by former statutes when the 
defendant was a non-resident, and 
which issued either in the form of an 
original or a judicial attachment and 
without any notice until there had 
been a levy or caption of the goods 
of the debtor, when advertisement was 
required if the defendant resided with- 
out the jurisdiction. Peters Grocery 
Co. v. Collins Co., 142 N. C. 174, 55 S. 
E. 90. 

11. U. S. — Naumburg V. Hyatt, 24 
Fed. 898, under the North Carolina 
code. Cal. — Myers v. Mott, 29 Cal. 
359, 89 Am. Dec. 49; Low V. Adams, 6 
Cal. 277; Bailey v. Aetna Indemnitv 
Co., 5 Cal. App. 740, 91 Pac. 416. 111. 
Moore v. Hamilton, 7 111. 429. Ind. 
Hoffman v. Henderson, 145 Ind. 613, 
44 N. E. 629; State ex rel. Mason v. 
Miller, 63 Ind. 475; Robbins v. Alley, 
38 Ind. 553; Excelsior Fork Co. V. 
Lukems, 38 Ind. 438; Fechheime V. 
Hays, 11 Ind. 478; United States Cap- 
sule So. v. Isaacs, 23 Ind. App. 533, 55 
N. E. 832. la. — Baldwin v. Buchanan, 
10 Iowa 277. Kan. — Bishop r. Smith, 66 
Kan. 621. 72 Pac. 220; Bundrem v. 
Denn, 25 Kan. 430. La. — United 
States v. Murdoek, 18 La. Ann. 305, 
89 Am. Dee. 651. Mich. — Fletcher v. 
Morrill, 78 Mich. 176, 44 N. W. 133. 
N. M— Southern Cal. Fruit Exoh. r. 
Stamm, 9 N. M. 361, 54 Pac. 345. N. 
Y. — Lowenthal t'. Hodge, 55 Misc. 374, 
105 N. Y. Supp. 670; Houghton v. Ault, 
16 How. Pr. 77; Fraser v. Greenhill, 
3 N. Y. Code Pep. 172. N. C— Toms 
v. Warson, 66 N. C. 417; Mixer, etc., 
Co. v. Excelsior Oil, etc., Co., 65 N. C. 



5.12; Marsh v. Williams, 63 N. C. 371. 
N. D.— Jewett Bros. v. Huffman, 14 N. 
D. 110, 103 N. W. 408. S. D.— Que- 
bec Bank V. Carroll, 1 S. D. 1, 44 N. 
W. 723. Tenn. — Templcton v. Mason, 
107 Tenn. 625, 65 S. W. 25. W. Va. 
Miller v. White, 46 W. Va. 67, 33 
S. E. 332, 76 Am. St. Rep. 791. 

"An attachment is but an incident 
to a suit, and unless the suit can be 
maintained the attachment must fall." 
If defendant cannot be sued in the 
district the court cannot issue attach- 
ment against his property. Ex parte 
Des Moines & M. R. Co., 103 U. S. 
794, 26 L. ed. 461. 

An ancillary attachment is a pro- 
ceeding in aid of the personal action, 
when the debtor has been served, or 
has appeared in court, so as to be lia- 
ble to a personal judgment. South- 
ern Cal. Fruit Exch. v. Stamm, 9 N. 
M. 361, 54 Pac. 345. 

Characterized by separate pleadings 
and a distinct practice. Staab v. 
Hersch, 3 N. M. 153, 3 Pac. 248, hold- 
ing that the affidavit is not sufficient 
as a declaration. 

That an attachment can no longer 
be granted under the revised statutes 
or under the non-imprisonment act, see 
Sullivan v. Presdee, 9 Daly (N. Y.) 
552. 

Under a Maryland statute provid- 
ing that when two summons have 
been returned non est against the de- 
fondant the plaintiff upon proof of his 
claim shall be entitled to an attach- 
ment, and the same proceedings shall 
thereupon be had as in attach- 
ment issued against absconding debt- 
ors, this is ancillary to a suit ac- 
tually pending, wherein the plaintiff 
has failed to secure the service of a 
summons upon the defendant. Steu- 
art v. Chappell, 100 Md. "538, 60 Atl. 
625. 

A statute authorizing an attach- 
ment for the enforcement of mechan- 
ics' liens is not original or ancillarv. 
Such attachment cannot be u?ed as the 
loading process to bring defendants 
before the court, but is auxiliary in its 
nature and collateral to the original or 

vol. in 



244 



ATTACHMENT 



5. As a Special Proceeding or a Provisional Remedy.— Attachment 
is frequently referred to as a special and extraordinary proceeding. 12 
This refers, probably, not strictly to special proceedings as technically 
understood, but to the fact that the right to the remedy is dependent 
entirely upon statute and was unknown to the common law. Under the 
codes and modern statutes, an attachment is a provisional remedy 
which, generally, may be had either at or after the commencement of 
the action in the cases and on the grounds prescribed by statute. 13 

C. Object op the Proceeding.— The ancient theory that the pur- 
pose of the proceeding was to compel the appearance of a defendant 
who was without the jurisdiction of the court " obtained under early 
statutes in this country. 15 



leading process by which a suit is 
commenced. Warner v. Yates & Co., 
118 Tenn. 548, 102 S. W. 92. 

A defective affidavit on which the at- 
tachment was founded furnishes no 
sufficient ground for interfering with 
the final judgment on the merits. Nes- 
qually Mill Co. v. Taylor, 1 Wash. 
Ter. 1. 

12. ria. — Haber & Co. v. Nassitts, 
12 Fla. 589. Mich.— Van Norman v. 
Circuit Judge, 45 Mich. 204, 7 N. W. 
796; Buckley v. Lowry, 2 Mich. 418. 
Miss. — Rankin v. Dulaney, 43 Miss. 
197. 

13. U. S.— Naumburg V. Hyatt, 24 
Fed. 898, under the North Carolina 
Code. Ark. — Ferguson v. Clidwell, 48 
Ark. 195, 2 S. W. 711. Ky.— Duncan 
v. Wickliffe, 4 Met. 118; Moore v. 
Sheppard, 1 Met. 97. Mont. — Lang- 
staff v. Miles, 5 Mont. 554, 6 Pac. 356. 
N. Y— Fraser v. Greenhill, 3 N. Y. 
Code Rep. 172. S. D. — Deering, etc., 
Co. v. Warren, 1 S. D. 35, 44 N. W. 
1068. 

Instead of the former proceeding of 
an independent action, the order of 
attachment is under the code only a 
provisional remedy to be allowed after 
the suit is commenced. Egan v. Luins- 
den, 2 Disney (Ohio) 168. 

An "action" and not a "special pro- 
ceeding" under the code definition of 
the latter term. Allen v. Partlow, 3 
S. C. 417. See also Gibson v. Sidney, 
50 Neb. 12, 69 N. W. 314. 

14. Cheatham v. Trotter, Peck 
(Tenn.) 198. See supra, II. 

15. Del. — Vogle v. New Grenada 
Canal, etc., Co., 1 Houst. 294. Pa. 
Albany City Ins. Co. v. Whitney, 70 
Pa. 248, wherein the court said that 
upon entering bail the attachment is 
dissolved and the judgment against 

vol. ni 



the defendant is in personam. Tenn 
Perkins v. Norvell, 6 Humph. 151; 
Green v. Shaver, 3 Humph. 139; Cheat- 
ham v. Trotter, Peck 198. 

In the Nature of Distringas or Out- 
lawry. — Barney v. Patterson, 6 Har. & 
J. (Md.) 182, wherein the court said: 
"By the common law, where a de- 
fendant was summoned, and would not 
appear, his goods were liable to be 
proceeded against by attachment and 
distress infinite, and the goods seized 
were forfeited to the King; and where 
the defendant was abroad or kept out 
of the way so that he could not be ar- 
rested, the plaintiff might proceed 
against him to outlawry, which was also 
attended with a forfeiture to the King 
of all his goods and chattels." See 
also, that the proceeding is in the na- 
ture of distringas or distress. Miss. — 
Myers v. Farrell, 47 Miss. 281. N. Y. 
Penoyar v. Kelsey, 150 N. Y. 77, 44 
N. E. 788, 34 L. R. A. 248. Pa.— Fitch v. 
Ross, 4 Serg. & R. 557, wherein the 
court said: "The declared object of 
the act was to prevent non-residents 
from withdrawing their effects from 
the State, leaving their debts unpaid." 

Foreign attachment is a proceeding 
in rem, by attachment of a non-resi- 
dent's goods, with the primary object 
of compelling an appearance to answer 
the plaintiff's suit. Longwell v. Hart- 
well, 164 Pa. 533, 30 Atl. 495. See 
also Reynolds v. Howell, 1 Marv. (Del.) 
52, 31 Atl. 875; Biddle v. Girard Nat. 
Bank, 109 Pa. 349; Fitch v. Ross, 4 
Serg. & R. (Pa.) 557; H. R. Claflin 
Co. v. Weiss Bros., 16 Pa. Co. Ct. 247, 
251. And see the title "Garnish- 
ment. ° 

When, from non-residence or flight, 
a debtor is beyond the process of ju- 
dicial tribunals, the purpose of the 



ATTACHMENT 



24; 



Modem Doctrine. —Generally, however, under modern statutes, the 
object of the proceeding is not to coerce the appearance of the defend- 
ant, but to obtain a lien upon property that is within reach of process 
to secure the payment of any judgment that may be recovered by the 
plaintiff in the main action. 10 

III. GENERAL RULES GOVERNING CONSTRUCTION AND 
OPERATION OF STATUTES. -A. Constitutionality.- By the levy 
of an attachment, the plaintiff acquires an interest in property which 
may become definite, fixed, certain, and vested by the ultimate recovery. 
So a repealing statute taking away the right to an attachment on the 
ground on which the levy was made is not applicable to a pending case 
in the face of a constitutional provision against the enactment of retro- 
spective laws. 17 Decisions construing alleged discriminating statutes 
are given in the notes. 18 



statute is to compel his appearance to 
answer the demand of the plaintiff, 
and on failure of appearance, to ap- 
ply such property to the just end of 
satisfying his debts. Risewick v. Da- 
vis, 19 Md. 82. 

16. U. S. — Adler v. Roth, 2 Mc- 
Crary 445. 5 Fed. 895. Ala.— Phillips 
V. Ash's Heirs, 63 Ala. 414. Ark.— 
Ferguson v. Glidewell, 48 Ark. 195, 
2 S. W. 711. CaL — Low v. Adams, 6 
Cal. 277. Conn. — Hollister v. Goodale, 
8 Conn. 332, 21 Am. Dec 674. D. 0. 
Robinson v. Morrison, 2 App. Cas. 
105, 126. 111.— People v. Cameron, 7 
111. 468. Ind. — Hoffman v. Henderson, 
145 Ind. 613, 44 N. E. 629; Excelsior 
Fork Co. i'. Lukens, 38 Ind. 438. Kan. 
Bundrem v. Denn, 25 Kan. 430. Ky. 
Francis v. Barnett, 84 Ky. 23. La. 
Adams V. Day, 14 La. 503, a con- 
servatory measure. Md. — Risewick v. 
Davis, 19 Md. St; Brent r. Taylor, 6 
Md. 58. Miss. — Myers v. Farre.ll, 47 
Miss. 281; Saunders V. Columbus L. 
Ins. Co., 43 Miss. 583. N. Y.— Peno- 
yar V. Kelsey, 150 N. Y. 77, 44 N. E. 
788, 34 L. R. A. 248; Robinson v. Na- 
tional Bank, 81 N. Y. 385, 393, 37 Am. 
Rep. 508; Finn v. Mehrbach, 30 Civ. 
Proc. 242, 65 N. Y. Supp. 250. Ohio. 
Ward & Co. v. Howard, 12 Ohio St. 
158. Ore.— Oliver r. Wright, 47 Ore. 
322, 83 Pac. 870. Term.— Templeton 
v. Mason, 107 Tenn. 625, 65 S. W. 
25. W. Va.— Wall v. Norfolk & W. 
R. Co., 52 W. Va. 485, 44 S. E. 294, 
94 Am. St. Rep. 948, 64 L. R. A. 501. 

The purpose of the remedy is ac- 
complished by holding the property 
until the judgment is rendered. My- 
ers V. Mott, 29 Cal. 359, 89 Am. Dec. 
49. 



To Confer Jurisdiction. — While gen- 
erally the disposition of the proceed- 
ings in attachment does not determine 
the status of the parties to the ac- 
tion, the levy may be necessary to con- 
fer jurisdiction if there is no personal 
service. Baldwin r. Buchanan. 10 Iowa 
277. And see Munroe V. Williams, 37 
S. C. 81, 16 S. E. 533, 19 L. R. A. 
665. 

The abolition of imprisonment for 
debt has had the effect of enlarging 
remedies against defendant's property. 
Robinson v. Morrison, 2 App. Cas. (D. 
C.) 105, 129. See also Blair V. Win- 
ston, 84 Md. 356, 35 Atl. 1101; Boyd 
r. Buckingham, 10 Humph. (Tenn.) 
434. 

17. National Bank of Commerce v. 
Riethmann, 79 Fed. 582, 25 C. C. A. 101 
(construing a Colorado statute); Mul- 
nix f. Spratlin, 10 Colo. App. 390, 50 
Pac. 1078; Day V. Madden, 9 Colo. App. 
464, 48 Pac. 1053. See also McFad 
den v. Blocker, 2 Ind. Ter. 260, 48 S. 
W. 1043; Hannahs c. Felt, 15 Iowa 141. 
But in Myers v. Mott, 29 Cal. 359, 
89 Am. Dec. 49, the court, after point- 
ing out that attachment is merely 
auxiliary, said that the legislature may 
give, withhold or limit an attachment, 
at their pleasure, without impairing 
any substantial right of either party. 

18. An Oklahoma statute requiring 
a bond from the plaintiff in case of 
attachment against the property of a 
resident is not violative of the 14th 
amendment to the federal constitution 
in not requiring a like bond as a con- 
dition to the issuance of attachment 
against the property of a non-resident. 
Central L. & T. Co. c. Campbell Com- 
mission Co., 173 U. S. S4, 19 Sup. Ct. 

Vol. in 



246 



ATTACHMENT 



B. Construction Generally.— It is generally held that, as an at- 
tachment is a harsh proceeding and one unknown to the common law, 
being purely statutory and in derogation of common right, the statutes 
with respect thereto must be strictly construed; 19 that attachments can 
be granted only in the. cases expressly provided for; 20 and that by those 
who seek to enforce their demands by the aid of such a remedy there 



346, 43 L. ed. 623, affirming 5 Okla. 396, 
49 Pac. 48. See* also Pyrolusite 
Manganese Co. v. Ward, 73 Ga. 491. 
For, it was held in Marsh v. Steele, 9 
Neb. 96, 1 N. W. 869, 31 Am. Rep. 406, 
is such a statute in conflict with Art. 
IV., Sec. 2, of the Constitution of the 
United States, which provides --that 
citizens of each State shall be en- 
titled to all privileges and immunities 
of citizens of the several States." 

An attachment statute not requir- 
ing personal service as between citi- 
zens of, and as to property in, the 
state is unobjectionable. Betancourt V. 
Eberlin, 71 Ala. 461. 

19. Cal — Gow v. Marshall, 90 Cal. 
565, 27 Pac. 422; Sonza v. Lucas (Cal. 
App.), 100 Pac. 115. Ga.— Levy 
V. Millman, 7 Ga. 167. la.— 
Wilkie V. Jones, Morris 97. La. — Rus- 
sell v. Wilson, 18 La. 367. N. M. 
Staab v. Hersch, 3 N. M. 153, 3 Pac. 
248. N. T. — Penoyar v. Kelsey, 150 N. 
Y. 77, 44 N. E. 788, 34 L. R. A. 248. 
Tex. — Chevallier v. Williams & Co., 2 
Tex. 239. 

And see the cases cited in the fol- 
lowing notes. 

20. Ala. — Taliaferro v. Lane, 23 
Ala. 369. Ariz. — Ordenstein v. Bones, 
2 Ariz. 229, 12 Pac. 614. Ark.— Kel- 
logg v. Miller, 6 Ark. 468; Hynson V. 
Taylor, 3 Ark. 552. Cal.— Mudge v. 
Steinhart, 78 Cal. 34, 20 Pac. 147, 12 
Am. St. Eep. 17; Drake v. DeWitt, 1 
Cal. App. 617, 82 Pac. 982. Colo.— 
Rocky Mountain Oil Co v. Central Nat. 
Bank, 29 Colo. 129, 67 Pac. 153. Del. 
Smith v. Armour, 1 Penne. 361, 40 
Atl. 720. Ga. — Forbes Piano Co. v. 
Owens. 120 Ga. 449, 47 S. E. 938. 111. 
Firebaugh v. Hall, 63 111. 81; Moore v. 
Hamilton, 7 111. 429. La.— Bussey & 
Co. v. Rothschilds, 26 La. Ann. 258; 
Gordon v. Bailio, 13 La. Ann. 473; New 
Orleans v. Garland, 11 La. Ann. 438; 
Denegre v. Milne & Co., 10 La. Ann. 
324; Shropshire v. Russell, 2 La. Ann. 
961. Mich. — Jaffray v. Jennings, 101 
Mich. 515, 60 N. W. 52, 25 L. R. A. 
645; Estlow v. Hanna, 75 Mich. 219, 

vol m 



42 N. W. 812; Van Norman v. Circuit 
Judge, 45 Mich. 204, 7 N. W. 796; 
Mathews v. Densmore, 43 Mich. 46} 
5 N. W. 669. Minn. — Pierse v. Smith, 
1 Minn. 82. Miss.— Nethery v. Bel- 
den, 66 Miss. 490, 6 So. 464. Mo.— 
Kingsland v. Worsham, 15 Mo. 657; 
Temple v. Cochran, 13 Me. 116. Neb. 
Farak V. Schuyler First Nat. Bank, 
67 Neb. 463, 93 N. W. 682; Handy v. 
Brong, 4 Neb. 60. N. J.— Van Em- 
burgh v. Pullinger, 16 N. J. L. 457. 
N. Y. — Rosenzweig V. Wood, 30 Misc. 
297, 63 N. Y. Supp. 447; Sullivan V. 
Presdee, 9 Daly 552 (holding that 
where a statute provides that when a 
defendant is not a resident of the 
city of New York the summons shall 
be returnable in not less than two nor 
more than four days from its date, 
and another statute makes an attach- 
ment returnable in not less than six 
days before the return day of the sum- 
mons, a plaintiff cannot obtain a valid 
writ of attachment where the defend- 
ant is a non-resident of the city of 
New York). Ohio. — Taylor v. Mc- 
Donald, 4 Ohio 150; Hoyman V. Bever- 
stock, 4 Ohio Cir. Dec. 491, 8 Ohio C. 
C. 473. Okla.— Jaffray v. Wolf, 1 Okla. 
312, 33 Pac. 945. S. C— Addison v. 
Sujette, 50 S. C. 192, 28 S. E. 948; 
Munroe v. Williams, 37 S. C. 81, 16 S. 
E. 533, 19 L. R. A. 665. Tex.— Kil- 
dare Lumb. Co v. Atlanta Bank, 91 
Tex. 95, 41 S. W. 64. W. Va.— Dela- 
plain & Co. v. Armstrong, 21 W. Va. 
211; Carrothers V. Sargent, 20 W. Va. 
351. 

A statement that the defendant was 
"about to leave the state and defraud 
his creditors" cannot be construed to 
be an allegation that he was about to 
remove his property out of the state, 
without leaving sufficient remaining 
for the payment of his debts. Be- 
sides, under the statute, that the de- 
fendant had refused to pay or secure 
the debt due the plaintiffs is a neces- 
sary part of the allegation. Upp tf. 
Neuhring, 127 Iowa 713, 104 N. W. 
350. 



ATTACH.)! EST 



247 



must be a strict observance of, 21 or a substantial compliance with all the 
requirements and regulations prescribed by the statute under 



Especially as Against Non-resident 
Debtors. — Mills v. Findlay, 14 Ga. 230; 
Brit ton V. Gregg, 96 111. App. 29. 

It is by virtue of positive, not nega- 
tive, law that the court can gain juris- 
diction of the property of a defendant 
by attachment, and when the positive 
provisions do not authorize an at- 
tachment on the ground of non-resi- 
dence, authority for so doing is not 
furnished by a section providing in 
what cases an undertaking may not be 
required, and if required, its char- 
acter and mode of approval. Hough v. 
Dayton Mfg. Co., 66 Ohio St. 427, 64 
N. E. 521. 

A Fair Interpretation. — While the 
provisions of the code in reference to 
this remedy must be strictly construed 
and followed, they should be fairly 
interpreted, so as to give them a con- 
sistent and efficient operation in prop- 
er cases. Roberts v. Landecker, 9 Cal. 
262. See also Elliott v. Jackson, 3 Wis. 
649. 

Practical Construction. — The attach- 
ment law as to removing one's prop- 
erty out of the state must receive a 
sensible and practical construction. 
Philadelphia Invest. Co. v. Bowling, 72 
Miss. 565, 17 So. 231. 

21. Ark.— Bush v. Visant, 40 Ark. 
124; Hynson V. Taylor, 3 Ark. 552. 
Cal. — Roberts v. Landecker, 9 Cal. 262. 
Conn. — Munger V. Doolan, 75 Conn. 
656, 55 Atl. 169. Ind.— Marnine v. 
Murphy, '8 Ind. 272; United States 
Capsule Co. v. Isaacs, 25 Ind. App. 533 
55 N. E. 832. 

Where There Is no Personal Service 
or Appearance of the Defendant. — 111. 
Britton v. Gregg, 96 111. App. 29. 
Ky— Pool v. Webster & Co., 3 Met. 
278. La.— Natchez First Nat. Bank v. 
Moss, 41 La. Ann. 227, 6 So. 25; Frell- 
son v. Stewart, 14 La. Ann. 832; Price 
v. Merritt, 13. La. Ann. 526; Planters' 
Bank v. Byrne, 3 La. Ann. 687; Gra- 
ham v. Burckhalter, 2 La. Ann. 415; 
Erwin v. Commercial, etc., Bank, 12 
Rob. 227; Putnam v. Grand Gulf R., 
etc., Co., 3 Eob. 232; Purdoe v. Cocke, 
1'8 La. 482; Jackson v. Warwick, 17 
La. 436; Millandon v. Foucher. 8 La. 
582; Lacy V. Kenley, 3 La. 16. Md. 
McPherson v. Snowden, 19 Md. 197. 
Mich. — Buckley v. Lowry, 2 Mich. 418. 



Minn. — Caldwell V. Sibley, 3 Minn. 
4n6, holding that state bonds were 
personal property and capable of man- 
ual delivery, and that when they wera 
not attached by being taken into ac- 
tual possession and entire control of 
the officer, the levy would not hold. 
Miss. — Rankin v. Dulaney, 43 Miss. 
L97. Mo.— Bryant v. Duffy, 128 Mo. 
IS, 30 S. W. 317. Mont.— Langstaff v. 
Miles, 5 Mont. 554, 6 Pac. 356. Neb. 
Buchanan v. Edmisten, 1 Neb. 
(Unof.) 429, 95 N. W. 620, holding 
that where the petition, affidavits, 
published notices, process, judgments 
and proceedings down to but not in- 
cluding the order of confirmation of 
the sale, described the defendant as 
O. P. Buchanan, and the land attempt- 
ed to be levied upon and sold was that 
of P. O. Buchanan, and there was no 
personal service, the proceedings were 
void. N. M. — Dye v. Crary, 12 N. M. 
460, 78 Pac. 533. S. C— Munroe v. 
Williams, 37 S. C. 81, 16 S. E. 533, 19 
L. R. A. 665; Wagener V. Booker, 31 
S C. 375, 9 S. E. 1055; National Exch. 
Bank v. Stelling, 31 S. C. 360, 9 S. 
E. 1028; Wando Phosphate Co. v. Ros- 
enberg, 31 S. C. 301, 9 S. E. 969. S. 
D. — Deering, etc., Co. V. Warren, 1 S. 
D. 35, 44 N. W. 1068. Tex.— Kildare 
Lumb. Co. v. Atlanta Bank, 91 Tex. 
95, 41 S. W. 64; Cox v. Reinhardt, 41 
Tex. 591; Wooster v. McGee, 1 Tex. 
17. Wash.— Holman r. Cooper, 48 
Wash. 24, 92 Pac. 781. Wis.— Led- 
erer v. Rosenthal, 99 Wis. 235, 74 N. 
W. 971; Wiley V. Anltman & Co., 53 
Wis. 560, 11 N. W. 32. 

The form prescribed by statute 
should be followed; and when no form 
is specified, there should be a substan- 
tial compliance with all the require- 
ments of the law in this regard. 
Shockley r. Bullocks, IS Ga. 283. 

Exclusive of Other Method. — All 
proceedings to subject the property of 
non-residents not actually served, and 
who do not appear to tire action, are 
: n derogation of the common law, and 
nothing is to be presumed in favor of 
the jurisdiction. When the statute 
provides a method by which the prop- 
erty may be reached it is not only 
to be strictly followed, but it must be 
followed to the exclusion of any other 

Vol. in 



248 



ATTACHMENT 



which it is obtained in order to give validity to the attachment. 2 * 
Liberal Construction. — It is frequently pointed out, however, that 
attachment laws, being intended for the benefit of creditors, should re- 
ceive a liberal construction with a view to effect their purpose, 23 and 
the rule requiring a strict construction was abandoned in some 
jurisdictions when it was found, by persistent enactments, that the 
remedy was a favorite of the legislature, 24 or when expressly modified 
by statutory provisions prohibiting a strict construction or requiring a 
liberal construction. 25 The purpose of such statutes, however, is the de- 



method not also clearly provided. 
Grigsby v. Barr, 14 Bush (Ky.) 330, 
holding that the statutes will not per- 
mit the property of a non-resident, 
constructively summoned, to be taken 
for the satisfaction of a claim, when 
there is no actual seizure of the prop- 
erty and no lien asserted. 

No Presumptions Indulged. — There 
must be no uncertainty in attachments 
which is not explained in the proceed- 
ings themselves, for no presumptions 
will be resorted to for the purpose of 
sustaining them. Focke r. Hardeman, 
67 Tex. 173, 2 S. W. 363, citing Espey 
v. Heidenheimer, 58 Tex. 662. 

22. HI. — Havwood v. Collins, 60 111. 
323. Md— Shivers v. Wilson, 5 Har. 
& J. 130, 9 Am. Dec. 497. Wis. — 
Barth v. Graf, 101 Wis. 27, 76 N. W. 
1100. 

23. U. S. — Fisher v. Consequa, 2 
Wash. C. C. 382, 9 Fed Cas. No. 4,816. 
Ky. — Spalding v. Simms, 4 Met. 285. 
Miss.— Barrow v. Burbridge, 41 Miss. 
622, construing a general statute to 
include non-resident creditors); An- 
gusta Bank v. Conrey, 28 Miss ; 667; 
Bryan v. Lashley, 13 Smed. & M. 284; 
Dandridge V Stevens, 12 Smed. & M. 
723. N. Y.'— Lenox v. Howland, 3 
Caines 323. Pa. — Strock v. Little, 45 
Pa. 416. 

Especially as Against Absconding 
Debtor. — Jones v. Buzzard, 2 Ark. 
415. 

When the defect is jurisdictional 
the courts have no right nor authority 
to disregard it. Cole v. Utah Sugar oo., 
35 Utah 148, 99 Pac. 681. 

Other decisions holding that a strict 
construction must be given are prob- 
ably under laws which may have been 
borrowed from and based on the local 
customs of London, Exeter, etc. Han- 
nibal, etc. R. Co. v. Crane, 102 111. 249, 
40 Am. Rep. 581. 

Distinction Between Causes and Pro- 
cedure. — Jackson V. Burke, 4 Heisk. 
(Tenn.) 610. 
VoL in 



While a strict compliance on the part 
of the attaching creditor with the stat- 
ute is required, in construing the mean- 
ing of the law as to the causes in 
which attachments may issue a liberal 
construction should be followed. Stiff 
v. Fisher, 2 Tex. Civ. App. 346, 21 S. 
W. 291. See also Vollmer v. Spencer, 5 
Idaho 557, 51 Pac. 609, declaring that 
a statute requiring all statutes to be 
liberally construed applies only where 
it is necessary to construe a statute. 
The rule to be applied is this: "If 
there is any uncertainty as to what 
the statute requires, construe the stat- 
ute liberally, but the requirements or 
acts to be performed, when the stat- 
ute is so construed, must be strictly 
performed." 

24 Vance v. Copper, 2 Coldw. 
(Tenn.) 497; Hills v. Lazelle, 5 Sneed 
(Tenn.) 363; Runyan V. Morgan, 7 
Humph. (Tenn.) 210. 

25. Ala. — Paarsoll v. Middlebrook, 
2 Stew. & P. 406, as to a statute di- 
recting "that the several acts of this 
state, in relation to attachments, shall 
not be rigidly and strictly construed." 
Ga. — Irvin v. Howard, 37 Ga. 18; 
Force & Co. v. Hubbard, 26 Ga. 289 
(as to substantial compliance). N. J. 
Stout v. Leonard, 37 N. J. L. 492, 
reversing 36 N. J. L. 370; Thompson 
v. Eastburn, 16 N. J. L. 100. Wash. 
Bender v. Rinker, 21 Wash. 633, 59 
Pac. 503. 

In Stafford v. Mills, 57 N. J. L. 574, 
32 Atl. 7, Lippincott, J., said: "While 
this is an extraordinary writ and only 
to be invoked when the debtor is, as 
an absconding or absent debtor, be- 
yond the reach of the ordinary process 
of the court, yet the act of the legis- 
lature authorizing the writ is to be 
beneficially construed in order to de- 
tect fraud, advance justice and bene- 
fit the creditor, and its purposes are 
not to be thwarted by any secret re- 
solves or intentions of the debtor on 



ATTACHMENT 



249 



tection of fraud, and they do not nullify the rule of strict construction 
for all purposes. 26 

C. Prospective or Retrospective Operation.— Prospective operation. 
It is held in some jurisdictions that a new attachment statute or 
a statute amending the attachment law, which does not go into effect 
until after an attachment was sued out, does not affect the pending 
case, 27 and this must necessarily he so when the statute is prospective in 
terms. 28 And so, under this rule, a statute which repeals a certain 
ground for which an attachment might have been issued has no effect 
upon attachment proceedings pending when it became a law. 28 



this subject. He is to be judged by 
ordinary and obvious indicia." 

26. The attachment act provides 
that it shall be construed in the most 
liberal manner for the detection of 
fraud, but no such question arises when 
the question is as to the propriety of 
issuing an alias writ. In such a ease 
the statute must be strictly construed; 
if it contains no authorization of such 
a writ none can be issued. Pack, 
Wood & Co. V. American Trust, etc., 
Bank, 172 111. 192, 50 N. E. 326, af- 
firming 70 111. App. 177. 

27. Frankcnheimer v. Slocum, 24 
Ala. 373; Kisewick v. Davis, 19 Md. 
82. 

A statute authorizing a summary 
judgment to be entered on a bond giv- 
en by the defendant for the release of 
the property, is not a remedial stat- 
ute, and does not apply to pending 
cases. Thompson v. Smith, 8 Mo. 723. 

Georgia Act, August, 20, 1906 (Acts 
1906, p. 120), providing that "the writ 
of attachment shall not be used to sub- 
ject in this state wages of persons 
who reside out of the state and which 
have been earned wholly without the 
Btate," applied to proceedings pend- 
ing in Georgia courts, and not reduced 
to judgment, at the time of when the 
act went into effect. Lears v. Sea- 
board Air Line Ky., 3 Ga. App. 614, 
60 S. E. 343. 

28. A statute placing attachment 
creditors on an equal footing with 
bona fide purchasers for a valuable con- 
sideration, which is expressly limited 
to conveyances thereafter made, can- 
not have a retroactive effect. Green- 
leaf v. Edes, 2 Minn, 264. 

A provision that "This act shall not 
extend to or affect any existing debt, 
contract, note or judgment," does not 
save a ground of, or right to an at- 



tachment which existed when the 
amendatory act was passed, but only 
has the effect of preventing a then ex- 
isting "debt, contract, note, or judg- 
ment," from being affected by the en- 
largement or change. Hough v. Day- 
ton Mfg. Co., 66 Ohio St. 427, 64 N. 
E. 521. 

Contracts "Made After the Passage 
of the Act." — When, as amended, a 
statute authorizes attachments on con- 
tracts "made after the passage of this 
act," the words refer to contracts 
made after the passage of the original 
statute and not as of the time of the 
amendment. O'Connor v. Blake, 29 
Cal. 312. 

29. National Bank V. Eiethmann, 79 
Fed. 582, 49 U. S. App. 144, 25 C. C. A. 
101 (wherein the court said that this 
also results from the provision of the 
bill of rights, ordaining that no law 
retrospective in its operation shall be 
passed); Mulnix v. Spratling, 10 Colo. 
App. 390, 50 Pac. 1078; Dav v. Madden, 
9 Colo. App. 464, 48 " Pac. 1053. 
But in Stephenson v. Doe, 8 Blackf. 
(Ind.) 508, 46 Am. Dec. 489, it was held 
that when a foreign attachment law 
was repealed without any cause in the 
repealing act providing for pending 
suits, a pending attachment suit was 
at an end upon the taking effect of the 
repealing act. 

If a deed of assignment for the bene- 
fit of creditors, the purpose of which 
was to hinder and delay creditors, gives 
grounds for attachment, a statute 
enacted pending the attachment is not 
intended to be retroactive as to disturb 
rights and liabilities incurred before 
its passage, although so far as the prac- 
tice is concerned, the new act applies 
in winding up assigned estates. Fitch 
v. Duckwall, 25 Ky. L. Eep. 1535, 78 
S. W. 185. 

Vol. m 



250 



ATTACHMENT 



Retrospective Operation.- On the other hand, under the rule that the 
legislature may enlarge, modify, or confer a remedy for existing legaj 
riiSs without infringing any principle of the constitution it is held 
that anew attachment law or an amendment to such a statute operates 
upon existing causes of action, 30 and especially may statutes merely 
affecting the procedure upon the remedy by attachment be applied to 

causes then pending. 31 

D Several Statutes. ^ Remedial statutes, which are not inconsist- 
ent 'are to be regarded as cumulative. 32 Several statutes must be con- 
strued together. 33 When general and special statutes respecting at- 



30. Coosa River Steam Boat Co. v. 
Barclay, 30 Ala. 120. 

A statute giving the remedy of at- 
tachment in a case to which it did not 
before apply, but in which the plain- 
tiff had another remedy, the language 
in which is general and unrestricted, 
extends to all cases whether then ex- 
isting or to arise thereafter. Green v. 
Anderson, 39 Miss. 359. 

31. A statute permitting an amend- 
ed or substituted affidavit applies to 
pending actions, since it relates only 
to the remedy in that it prescribes and 
regulates a mere matter of procedure. 
Rosenthal V. Wehe, 58 Wis. 621, 17 N. 
W. 318. 

A special statute restricting provis- 
ion as to the time of making motions 
to dissolve attachments to causes then 
pending is cited in Kennedy v. Mitchell, 
4 Fla. 457, where the court regretted its 
passage. But compare Ridlon v. Cressey, 
65 Me. 128, where it was held that an 
attachment which had been dissolved 
by the death of the debtor and a decree 
in insolvency, was not restored by a 
subsequent statute because, first, ac- 
tions pending at the time of the pass- 
age of an act are not affected by it; 
and, second, an act that should under- 
take to restore an attachment already 
dissolved, and where the property had 
been conveyed to a bona fide pur- 
chaser, would be unconstitutional and 
void. 

32. Bradley V. Interstate Land & 
Canal Co., 12 S. D. 28, 80.N. W. 141. 

Different Remedies. — Haldeman v. 
Starrett, 23 111. 393. 

33. Henrietta Min. etc., Co. v. Gard- 
ner, 173 U. S. 123, 19 Sup. Ct. 327, 43 
L. ed. 637, reversing 5 Ariz. 211, 81 
Pac. 1126; In re Barnet's Case, 1 Dall. 
(U. S.) 152, 1 L. ed. 77; Bradley v. 
Interstate Land, etc. Co., 12 S. D. 28, 

vol ni 



80 N. W. 141; Finch v. Armstrong, 9 
S. D. 255, 68 N. W. 740. 

Repeal by implication by a later re- 
pugnant statute. Henrietta Min., etc., 
Co. v. Gardner, supra. 

Plea to the Merits and to the Grounds 
for Attachment. — A statute providing 
that when plaintiff has filed with his 
declaration in the action of debt an 
affidavit stating the amount due and 
unpaid, no plea can be filed unless the 
defendant files his affidavit that noth- 
ing is due from him on plaintiff's de- 
mand, or that a certain less sum is all 
that is due, and a statute providing that 
if the defendant desires to controvert 
the existence of grounds stated in the 
affidavit, he may file a plea in abate- 
ment, denying the existence of such 
grounds, do not conflict but stand well 
together Miller v. Fewsmith Lumber 
Co., 42 W. Va. 323, 26 S. E. 175. 

Concurrent Remedy. — General pro- 
visions of a practice act, which are not 
by the terms thereof exclusive of the 
former practice under an attachment 
act, do not repeal the latter, but so 
far as cases covered by the attach- 
ment act are concerned, furnish a con- 
current remedy. Hotel Registry Realty 
Corp. v. Stafford, 70 N. J. L. 528, 57 
Atl. 145. 

Effect of Repealing Section of the 
Code. — The code, having provided a 
method for subjecting the property of 
a non-resident to the payment of his 
debts due upon contract, by attach- 
ment, all laws previously enacted, and 
providing any other manner of proceed- 
ing, are repealed by the general re- 
pealing section of the code. Grigsby v. 
Barr, 14 Bush (Ky.) 330. 

Repeal of Statute by Failure To Re- 
peat Provision.— A statute requiring a 
levy upon personal property to be made 
in the presence of two residents of the 
county, is repealed by a later statute 



ATT AC II. ME NT 



251 



tachments are inconsistent, the general law must yield to the special. 34 

E. Adjudging Rights According to the Lex Fori.— The liability of 
property to be seized and sold under a writ of attachment, and what are 
the proper modes of proceeding in making the attachment, are to be 
determined by the laws of the state in which the property is situated 
and the attachment is sued out, 35 and not by the law of the state in 
which the owner or claimant lives. 36 As also must any question of 
privilege or priority be thus determined.' 57 

F. Existence of or Resort to Other Remedy.— Existence of Other 
Remedy.— It is held that when a party has a right to the remedy of 
attachment, it is unnecessary to consider whether he has any other 
remedy. 38 And so, under modern statutes generally, the purpose of 
which is to secure the property so as to have it forthcoming to satisfy 
the judgment, an attachment may issue although personal service might 
be had, 39 and the fact that a surety on a note sued, on is solvent does not 



which drops this provision and which 
seems to be a revision of the whole 
subject-matter and to be intended as a 
substitute for the previous statute, and 
which protects as fully the rights of 
parties and of all persons who may 
have any interest in the action. Camp- 
bell v. Case, 1 Dak. 17, 46 N. W. 504. 

34. Farnsworth V. Terre Haute, etc., 
K. Co., 29 Mo. 75, holding that the pro- 
vision of a general law declaring that 
foreign corporations shall be subject 
to the extraordinary process of attach- 
ment, under the same circumstances in 
which individuals may be either sued 
or attached, must yield to a special 
provision limiting the right of attach- 
ment against a foreign corporation to 
one whoso chief office or place of busi- 
ness is out of the state. 

35. French v. Hall, 9 N. H.~ 137, 32 
Am. Dec. 341. 

36. U. S. — Green r. Van Buskirk, 5 
Wall. 307, 18 L. ed. 599. N. J.— Cron- 
an v. Fox, 50 N. J L. 417, 14 Atl. 119. 
N. Y.— Keller V. Paine, 107 N. Y. 83, 
13 N. E. 635; Warner v. Jaffray, 96 
N. Y. 248, 48 Am. Rep. 616. S. — 
Pegram & Co. v. Williams, 4 Eich. L. 
219. 

37. McGregor v. Barker, 12 La. 
Ann. 289. 

While an lex loci governs in all ques- 
tions touching the contract, the rights 
of parties in pursuing remedies upon 
it, or in enforcing claims growing out 
of it, or other claims against its sub- 
ject-matter, are to be determined by 
the laws of the country where those 



rights are sought to be enforced. Fer- 
guson v. Clifford, 37 N. H. 86. 

38. Shepherd v. Shepherd, 51 Misc. 
418, 100 N. Y. Supp. 401, affirmed, 117 
App Div. 924, 103 N. Y. Supp. 1141. 

See infra, VII. 

Statute as to Inability to Find De- 
fendant. — Under a statute authorizing 
an attachment of personal property in 
cases where "the officer cannot find 
the body of the defendant within his 
precinct," where the officer had oppor- 
tunity to arrest the defendant, but 
waited until plaintiff's agent enticed 
the defendant out of the state and 
then attached the property of defend- 
ant, a plea in abatement to the at- 
tachment will be sustained. Xason v. 
Esten, 2 R. I. 337. See Weldon v. 
Wood, 9 R. I. 241. 

39. Grubbs V. Colter, 7 Baxt. (Tenn.) 
432; Bovd v. Buckingham & Co., 10 
Humph. '(Tenn.) 434. 

A statute making a foreign corpora- 
tion, doing business within the state, 
liable to be sued by persons having 
claims against it, does not make it 
any the less a foreign corporation and 
liable to be proceeded against by at- 
tachment. South Carolina R. Co. r. 
People's Sav. Inst., 64 Ga. 18. 

When an attachment was issued on 
the ground that the defendant was 
removing out of the state, as that the 
ordinary process of the law could not 
be served on him, the defendant may 
raise an issue that he could have been 
served with the ordinary process of 
the law. Funk V. McCullough, 24 Miss. 

vol. in 



252 



ATTACHMENT 



deprive a party of his right to an attachment on proper grounds against 

the principal. 40 ,..«., . , -, - i 

Resort to Other Remedy. — When a plaintiff has invoked the remedy 
by attachment, he cannot, it has been held, resort to other remedies to 
the prejudice of the defendant, so long as he relies upon his attachment 
lien. 41 When, however, he has first resorted to any other particular 
remedy, it is held in some cases that this does not prevent the issuing of 
an ancillary attachment in the same suit if the statutory cause for an 
attachment is shown, 42 while other cases hold that property cannot be 
attached so long as such other remedy is relied on. 43 



481, wherein the court held that it was 
error to refuse to charge the jury as 
requested by the defendant, "that if 
the jury believe from the testimony 
that said Funk, the defendant, was in 
Natchez, with the property levied on, 
at the time the plaintiff applied for 
and took out the writ of attachment 
issued in this case; and if at that time 
the ordinary process of law could have 
been served on said Funk personally 
in said county of Adams, then the 
jury must find for the defendant Funk, 
in the issue joined." 

40. Richardson v. Probst, 103 Iowa 
241, 72 N. W. 521. 

41. Roberts V. Landecker, 9 Cal. 
262. 

A debtor's person and estate can- 
not both be holden at the same time 
upon the same attachment. Daniels 
V. Wilcox, 2 Root (Conn.) 346. 

Arrest Without Knowledge of Cred- 
itor. — Where, upon an original _ writ, 
property was attached by direction of 
the creditor, and between such attach- 
ment and the completion of the serv- 
ice by the delivery of a summons, the 
debtor was arrested and held to bail 
on the same writ, but without the di- 
rection or knowledge of the creditor, 
the attachment was held good as 
against and after attachment of the 
same (property by another creditor, 
notwithstanding the intermediate ar- 
rest. Almy V. Wolcott, 13 Mass. 73. 

42. Massey v. Walker, 8 Ala. 167; 
Wood v. Carter, 29 Ga. 580. These 
were cases of suits commenced by bail 
process. 

A proceeding by attachment under 
the Pennsylvania Act of 1869 is not 
inconsistent with an action to recover 
the demand for goods sold and money 
loaned. Though there may be two 
recoveries, there can be but one satis- 
faction. The attachment was not, 

vol ni 



therefore, dissolved because of the 
pendency of the other action. Swartz 
v. Lawrence, 12 Phila. 181, 34 Leg. 
Int. 114. 

A pending action in equity, in which 
a preliminary injunction had been ob- 
tained, was held not to abate an at- 
tachment in Meyers v. Rauch, 4 Pa. 
Dist. 333. 

Proceedings under a deed of trust, 
and by attachment on other property, 
are concurrent remedies, and may pro- 
ceed pari passu. The collection of the 
whole amount of the debt secured by 
the trust deed, by execution of the 
judgment in attachment, is an elec- 
tion to repudiate the action under the 
deed of trust. Yourt v. Hopkins, 24 
111. 326. 

43. Brinley v. Allen, 3 Mass. 561, 
after having arrested the body of the 
defendant on the same writ. 

When a statute exempted the body 
from arrest on contracts, but did not 
change the form of the writ which had 
theretofore issued against the goods 
and chattels and for want thereof 
against the body of the defendant, it 
is no cause of abatement that the writ 
issued as an attachment of the prop- 
erty or body of the defendant. Lang- 
don v. Dyer, 13 Vt. 273. 

Under a Washington statute provid- 
ing that the plaintiff shall not prose- 
cute any other action for the same 
matter while he is foreclosing his 
mortgage or prosecuting a judgment of 
foreclosure, an attachment, while an 
ancillarv proceeding, would be an ad 
ditional remedy for one who has begun 
a suit for foreclosure. "It was to 
prohibit a mortgagee securing by writ 
of attachment or otherwise an addi- 
tional remedy in anticipation of a de- 
ficiency judgment, while looking to the 
mortgage security, and before ex- 
hausting the same by foreclosure and 



ATTACHMENT 



253 



IV. SEVERAL ATTACHMENTS. -A. In the Same CAUSE.-In the 

absence of statute authorizing it, a second or double attachment as be- 
tween the same parties on the same cause of action cannot be issued. 4 * 



6ale. " Advance Thresher Co. v. 
Schinke, 47 Wash. 162, 91 Pac. 645. 

44. Ga.— Wilson V. Strieker & Co., 66 
Ga. 575. 111.— Peck, Woods & Co. v. 
American Trust, etc., Bank, 172 111. 192, 
50 N. E. 326, affirming 70 111. App. 177. 
Mich. — Baxter v. Grove, 92 Mich. 291, 
52 N. W. 294. N. J.— Del Hoyo v. 
I'.rundred, 20 N. J. L. 328; Harris V. 
Linnard, 9 N. J. L. 58. N. M— Dye v. 
Crary, 12 N. M. 460, 78 Pac. 533, 13 
N. M. 439, 85 Pac. 1038, 9 L. R. A. 
N. S. 1136, affirmed in 208 U. S. 515, 28 
Sup. Ct. 360, 52 L. ed. 595. 

In Smith-Frazer Boot, etc., Co. t>. 
Derse, 41 Kan. 150, 21 Pac. 167, the 
court said that "where an action is 
pending between the same parties, in 
which an attachment is issued, it will 
be oppressive, and therefore an abuse 
of judicial process, to hold that the 
plaintiff might institute a second ac- 
tion for the same cause, and obtain an- 
other order of attachment, thus multi- 
plying and increasing costs and ex- 
penses without any reasonable excuse." 
Proceedings invalid because of fatal- 
ly defective undertaking do not cre- 
ate valid liens upon the property nor 
operate to prevent a new proceeding 
upon a valid undertaking in the same 
action. Kern Vallev Bank v. Koehn, 
157 Cal. 237, 107 Pac. Ill, affirming 
10 Cal. App. 679, 103 Pae. 173. 

After Two Non-Ests. — Where an at- 
tachment, issued under a statute pro- 
viding that "there shall be issued with 
every attachment, a writ of summons 
against the defendant, and a declara- 
tion or short note expressing the plaint- 
iff's cause of action shall be filed, and 
a copy thereof shall be sent with the 
writ to be set up at the Court-house 
door by the sheriff or other officer," 
has been dissolved after two returns 
of non est, the proceeding is out of 
court unless the quashing order be re- 
versed on appeal, and a second attach- 
ment cannot be issued under a stat- 
ute authorizing an attachment to is- 
sue in a pending action when two sum- 
mons have been returned non est. 
"The plain meaning of this is that 
when an action is pending in any 
court of law, which the court in the 
exercise of its general jurisdiction has 



the power to try and decide, provided 
jurisdiction over the person of the 
defendant be obtained by service of 
the summons upon him, and in such 
a case there are two returns of non 
est to two successive writs of sum- 
mons, then the judge is authorized to 
regard such returns as evidence that 
the defendant is a non-resident or ab- 
sconding debtor; and, if the plaintiff's 
cause of action be such as would en- 
title him to an attachment on war- 
rant, the judge is authorized and di- 
rected to order the attachment to is- 
sue, provided the plaintiff produces be- 
fore him the same proof of his claim 
that he would be required to produce 
before the magistrate, in order to ob- 
tain his warrant to the clerk of the 
proper court to issue an attachment. 
When the attachment is thus ordered 
by the judge, it is subject to the same 
conditions, and the same proceedings 
must be had upon it, as if it were 
an attachment on warrant, with the 
single exception that the order of the 
judge supersedes and takes the place 
of the warrant of the magistrate. But 
the court in executing this power can 
look only to the returns made to the 
writs of summons issued in the ac- 
tion then pending before it, which has 
been brought in the ordinary way, and 
which invokes the exercise of its gen- 
eral jurisdiction. It cannot look to 
returns made in an attachment pro- 
ceeding under a special, limited and 
statutory jurisdiction." Randle V. 
Mellen, 67 Md. 181, 8 Atl. 573. 

Original Attachment Followed by 
Ancillary. — Where a suit may be and 
has been commenced by an original at- 
tachment issued against the estate of 
the defendant, it may be followed by 
an ancillary attachment issued en any 
ground on which such an attachment 
may be granted. Brown v. Isbell, 11 
Ala\ 1009, the court saying: "It would 
perhaps be competent to dismiss the 
ancillary attachment, or quash the levy 
thereof, where the estate of the de- 
fendant levied on under the original 
attachment was unquestionably ample 
to satisfy the demand sought to be 
recovered. However, this may be, if 
the ancillary attachment was vexa- 

voi. m 



254 



ATTACHMENT 



Under statutory authority, without filing a new petition, affidavit or 
bond, successive writs of attachment between the same parties and in 
the same cause may issue, 45 when one. writ has been abandoned, 46 or 
dissolved, 47 or the first was so irregular and unauthorized that it 
should be quashed on motion, 48 or if there is a failure to obtain suffi- 
cient property under the first writ to secure the debt, and other prop- 
erty is subsequently discovered, 49 and additional attachments may thus 
issue to different counties. 80 



tiously sued out, the plaintiff will be 
liable to respond to the defendant in 
an action for damages." 

A garnishee cannnot be brought in 
by an alius writ of attachment, and 
such a writ, not being authorized by 
statute, is void and no waiver would 
make it good. Pennison v. Blumenthal, 
3? 111. App. 385. 

Rule of Court. — In Van Benschoten v. 
Fales, 126 Mich. 176, 85 N. W. 476, 
where property had been seized under 
the original writ and all that remained 
to be done was to summon the defend- 
ants, it was -held that an alias writ 
should have issued under rule of court. 
Under constitutional authority con- 
ferred on the supreme court to modify 
and amend the practice in circuit 
courts a rule of court providing for 
alias writs is authorized, there being 
no statutory provision on the subject. 

45. La. — Elliott v. Stevens & Co., 10 
Iowa 418; Hamill, etc., Co. v. Phenicie, 
9 Iowa 525. N. Y. — Mojarrieta V. 
Saenz, 80 N. Y. 547, 58 How. Pr. 505; 
Acker v. Jackson, 3 How. Pr. (N. S.) 
160. Tex. — Bradshaw V. Tinsley, 4 
Tex. Civ. App. 131, 23 S. W. 184,- hold- 
ing that when the petition and affida- 
vit were filed on July 13th, and one 
attachment was issued on that day, 
another attachment of September 16th 
of the same year was not issued too 
remotely from the date of tho petition 
and affidavit. W. Va.— Ballard v. 
Great Western Min., etc., Co., 39 W. 
Va. 394, 19 S. E. 510. 

In Foote v. John E. Hall Com. Co., 84 
Miss. 445, 36 So. 533, the writ had not 
been served by the sheriff as required 
by law. It was held that the court be- 
low erred in refusing the request for 
the alias writ, under the rule as laid 
down in Bates v. Crow, 57 Miss. 678, 
under a similar statute. 

Showing of Continued Existence of 
Debt. — To support a petition for an 
order for a second attachment, there 

Vol. IIL 



must be a showing under oath of the 
continued existence of the debt, and 
the necessity of the further process de- 
manded. Favrot V. Delle Paine, 4 La 
Ann. 584. 

46. Mojarrieta v. Saenz, 80 N. Y. 
547, 58 How. Pr. 505. 

Where first attachments were aban- 
doned simply because the plaintiff did 
not have in the writs the right name 
of the defendant, and subsequent at- 
tachments were made on writs issued 
for the purpose of correcting the mis- 
take, and the plaintiff and officer acted 
without fraud and in good faith, the 
subsequent attachments were valid 
even if the property was not returned 
to the owner before they were made. 
Brady v. Eoyce, 180 Mass. 553, 62 N. 
E. 960. 

47. Anderson v. Land, 5 Wash. 493, 
32 Pac. 107, 34 Am. St. Rep. 875. 

48. Ballard v. Great Western Min., 
etc., Co., 39 W. Va. 394, 19 S. E. 510. 

In Ladenburg v. Commercial Bank, 
5 App. Div. 219, 39 N. Y. Supp. 119, 
it was held that an attachment is not 
invalidated merely because a prior at- 
tachment has been issued in the same 
action. Here the second attachment 
was issued to save the plaintiff's rights, 
which were jeopardized by an attack 
upon the previous attachment, which 
were attacked not upon the merits, 
but upon petty technicalities. 

Set Aside on Insu^oient Bond.— 
Harrison V. Poole. 4 Bob. (La.) 193. 

49. Flliott v. Stevens & Co., 10 
Towi 418. 

50. la.— Elliott V. Stevens & Co., 
10 Iowa 418. Mo. — Ma grew v. Foster, 
54 Mo. 258. Tex. — Branshaw V. Tins- 
lev, 4 Tex. Civ. App. 131, 23 S. W. 
181. 

The appointment of a receiver to 
take charge of propertv inHndinor that 
levied upon by a writ of attachment 



ATTACHMENT 



255 



To Different Counties Generally. — Under statutory authority, several 
attachments may be issued in the same action to different count i< 
as, where an attachment defendant has property in several count i- 
or where there are several defendants who reside or have property in 
different counties. 53 And under various statutes it has been held that, 
the first affidavit being bad, a second attachment may be sued out upon 
a second affidavit stating a second ground. 54 And it has been held that 
it is no ground for dismissing a foreign attachment, instituted in a 
United States circuit court, that the plaintiff had sued out another at- 
tachment against the defendant in a state court, for the same cause of 
action, and afterwards discontinued it, when there is no evidence of 



does not show a dismissal or abandon- 
ment of the attachment proceedings, 
and a second writ may be issued to 
seize property in another county, with- 
out a new affidavit and bond. Kunner 
V. Scott, 150 Ind. 441, 50 N. E. 479. 

51. Simpson v. East, 124 Ala. 293, 
27 So. 43G; Mojarrieta V. Saenz, 80 N. 
Y. 547, 58 How. Pr. 505. 

Real or Personal Property in County 
of Suit. — Under a statute which pro- 
vides that when the defendant "has 
property or effects" in different coun- 
ties, that "separate writs may issue 
to every such county," it is imma- 
terial whether the property in the 
county in which the suit is commenced 
is real or personal or both. Huxley v. 
Han-old, 62 Mo. 516. 

52. Carter V. Arbuthnot. 62 Mo. 582. 
See Read v. Kirkwood, 19 Ark. 332. 
This statute seems to have been over- 
looked in Brocage v. Block, 7 Ark. 
359, and Smith v. Block, 7 Ark. 358. 

In Martinovieh v. Marsicano, 150 
Cal. 597, 89 Pac. 333, the court, con- 
struing Cal. Code Civ. Proc. §§537-540, 
and holding that the several writs may 
issue on one affidavit, said: "This pro- 
vision of section 540, as we read it, was 
intended solely in aid of the plaintiff in 
attachment, and the whole purpose was 
to authorize such a plaintiff to have at 
one time two or more writs addresed to 
sheriffs of different counties, so that 
property of the defendant in various 
counties necessary to secure the plain- 
tiff's claim may be levied on under the 
one proceeding for attachment insti- 
tuted by him. The plaintiff in attach- 
ment is, by virtue of the showing made 
and security given, entitled to have as 
many writs issued to different sheriffs 
as he may see fit to demand. All writs 
so demanded and issued constitute parts 
of one proceeding to have the property 



of the defendant in the state levied on 
as security for any judgment that may 
be obtained, and have for their basis 
the affidavit and undertaking given to 
secure the remedy of attachment. If 
by his first demand he has failed to ask 
for and secure a writ for a county in 
which he almost immediately thereafter 
discovers attachable property neces- 
sary to his security, no good reason is 
apparent why he may not reach such 
property by procuring what he would 
have been entitled to as a matter of 
right in the first instance by including 
it in his demand to the clerk, thus 
accomplishing the same result that he 
would be. enabled to obtain as to prop- 
erty subsequently discovered in a coun- 
ty for which a writ had issued, before 
the return of the attachment, by a 
simple direction to the sheiilF. " The 
mere fact that a writ has been issued 
as to one county of the state should 
not deprive the plaintiff of his ri^lit to 
a writ for any other county, and the 
statute does not, in our opinion, have 
such effect." See also Harbour Pitt 
Shoe Co. v. Dixon, 22 Ky. L. Rep. 1169. 
60 S. W. 186. 

53. Runner v. Scott, 150 Ind. 141, 
50 N. E. 479; Carter v. Arbuthnot, 62 
Mo. 582. 

54. Miller r. White, 46 W. Va. 67. 
33 S. E. 332, 76 Am. St. Rep. 791. See 
also Talhelm v. Hoover, 4 Pa. Co. Ct. 
172. 

"I can find nothing in the Code to 
prevent the granting of- one attach- 
ment on the ground of non-residence 
and another on the ground of intent to 
defraud creditors by transfer of prop- 
erty." Rider r. Ellis, 123 X. V. Supp. 
1081, relying on dicta in Kibl 
Wetmore, 31 Hun 42 J. And Bee La- 
denburg p. Commercial Bank, 5 App. 
Div. 219, 39 N. Y. Supp. 119. 

Vol. in 



256 



ATTACHMENT 



intention to harass the defendant; 55 and that the mere pending of an 
attachment by the plaintiff against the defendant, for the same cause 
of action, in another state, affords no ground for dissolving the attach- 
ment, although that was the first laid, since the funds found in one 
state may be quite insufficient to discharge the debt. 56 

Necessity for Return of First Attachment. — There is authority for a rule 
that an alias attachment cannot be issued when the original attach- 
ment has not been .returned, 57 while on the other hand it has been held 
that a statute providing that "where any attachment has issued out of 
the circuit court in any county, it shall be lawful for the plaintiff, at 
any time before judgment, to cause an attachment to be issued to any 
other county of this state, ' ' authorizes the plaintiff to sue out a second 
attachment at any time before judgment, and he is not bound to wait 
until the first writ is returned showing that the levy is not sufficient to 
secure the payment of the plaintiff's demand. 58 

B. In Other Causes.— Successive attachments, at the suit of other 
plaintiffs and for other causes of action, may generally issue pending an 
attachment, 59 under the circumstances and upon the conditions sug- 
gested in another part of this article. 60 

C. Plea of Pendency of Another Suit. 61 — 1. In General.— Under 
the rule that two suits between the same parties for the same subject- 
matter cannot be prosecuted at the same time, it is generally held that 
a pending suit may be pleaded in abatement of a subsequent attach- 
ment suit, 62 and that the pendency of an attachment suit may be 



55. Fisher v. Consequa, 2 Wash. C. 
C. 382, 9 Fed. Cas. No. 4,816. 

Though an order of attachment may 
have been discharged by a tribunal of 
QO-ordinate jurisdiction, the plaintiff 
having sued out another, would have 
the right to ask the opinion of the 
court from which it issued as to its 
validity. Brooks v. Todd, 1 Handy 
(Ohio) 169. 

If an original attachment is vacated, 
and a motion for issuing a new attach- 
ment obviating previous defects is not 
a renewal of the old motion, but one 
based upon a new state of facts, it re- 
quires no leave for its presentation. 
Selser Bros. Co. v. Potter Produce Co., 
80 Hun 554, 30 N. Y. Supp. 527, 
affirmed, 144 N. Y. 646, 39 N. E. 494. 

56. Clark v. Wilson, 3 Wash. C. C. 
560, 5 Fed. Cas. No. 2,841.. 

57. Wallace, Elliott & Co. v. Plu- 
kart, 6 Pa. Co. Ct. 151. 

The process is considered as an exe- 
cution, and should be governed by the 
same principles, and the first writ 
should be returned before the second 
can legally issue. Baldwin V. Wright, 
3 Gill (Md.) 241. 

I VoL III 



58. Morris v. School Trustees, 15 
111. 266. 

59. Duffin v. Wolf, 21 N. J. L. 475 
{disapproving the dictum to the con- 
trary in Cummins V. Blair, 18 N. J. L. 
151); Brown V. Bissett. 21 N. J. L. 
46; Halpin V. Hall, 42 Wis. 176. 

An attachment in a state court is no 
bar to an attachment in a federal court 
on another cause of action, though be- 
tween the same parties. "The rule 
of comity cannot be invoked unless the 
situation here will lead to conflict with 
the state court. No trouble about the 
res can arise. The attachment liens 
will be governed by the rules appli- 
cable to successive attachments under 
the state statutes, which furnish the 
rule of action for this court, since no 
federal statute governs the matter." 
Loewe & Co. v. Lawlor, 130 Fed. 633. 

60. See infra, VI. 

61. See generally the title "An- 
other Action Pending." 

62. Monroe v. Keid, 46 Neb. 316, 64 
N. W, 983, replevin suit. 

In McKinsey v. Anderson, 4 Dana 
(Ky.) 62, the court said: "The pen- 
dency of the petition when the attach- 



ATTACH mi-:. NT 



257 



pleaded in abatement when it is shown that the ponding attachment is 
ta furtherance of the satisfaction of the same claim, 63 or one in which 



went was issued, would not per se 
have been sufficient to abate the lat- 
ter. But the continued pendency of 
the petition to the time of pleading in 
court, furnished unanswerable matter 
in abatement of the suit which was 
last instituted." 

When a suit by declaration was com- 
menced on the same day an attach- 
ment was sued out against the goods 
of the defendant, it cannot be pre- 
sumed that the attachment suit was 
commenced first, but, nothing appear- 
ing to the contrary from the record, it 
may be inferred that the suit by dec- 
laration was in fact first commenced. 
Wales v. Jones, 1 Mich. 254. 

Verdict Obtained on Bail Process.— 
Where an attachment and a proceed- 
ing by bail process, on the same sub- 
ject-matter and between the same par- 
ties, were sued out at the same time, 
and a verdict was obtained in the bail 
case, it was proper to dismiss the at- 
tachment. Such a case presents no 
reason for making an exception to the 
general rule. Clark v. Tuggle, 18 Ga. 

Motion. — ''The contention on the 
part of the appellant that the question 
■whether another action is pending for 
the same cause cannot be raised by a 
motion, but that it must be set up by 
plea or answer, cannot be sustained. 
One of the facts necessary to be shown 
by affidavit in order to obtain a war- 
rant of attachment is that a cause 
of action exists; and if that is not 
only not shown, but is negatived, by 
the affidavits on the motion papers, 
then the attachment cannot stand. See 
Baum V. Bell, 28 S. C. 201, 5 S. E. 
485." Ferst v. Powers, 58 S. C. 411, 
36 S. E. 749. 

But in Movers V. Rauch, 4 Pa. Dist. 
333, it was held that the merits of 
such a plea cannot be determined upon 
a motion to dissolve an attachment in 
advance of trial. And see Seeley f. 
Missouri, etc. R. Co., 39 Fed. 252. 

That an interlocutory decree in an 
equity suit has been rendered by a 
federal court is no reason for dissolv- 
ing an attachment in an action at law 
commenced in a state court and re- 
moved to the federal court. "It has 
nevei been decided that the pendency 



of a prior suit in equity is a good plea 
in abatement to a subsequent suit at 
law between the same parties." See- 
ley v. Missouri, etc., R. Co., 39 Fed. 
252. But see Monroe v. Reid, 46 Neb. 
316, 64 N. \V. 983, and the title "An- 
other Action Pending." 

In Pennsylvania Only a Judgment 
Bars. — "This is held in the case of 
Miller v. Rohrer, 127 Pa. 384, where it 
is ruled that 'a proceeding by attach- 
ment under the Act of March 17, 1869, 
is to be regarded as a personal action,' 
and that 'the prior recovery of a final 
judgment in another proceeding be- 
tween the same parties upon the same 
cause of action, is a bar to the re- 
covery of a judgment in the proceed- 
ing by attachment; and this, though 
the defendant in the attachment filed 
no bond under section 3 of the Act.' 
Of course, there could be but one re- 
covery between the same parties for 
the same cause of action. As is said 
in Brenner v. Moyer, 98 Pa. 274, a re- 
covery in one extinguishes the right 
to recover in the other, and is to the 
plaintiff in lieu thereof, a security of 
a higher order. But there is no case 
that we can find wherein it has been 
held that a party could be barred from 
a recovery in one action because an- 
other action might be pending for the 
same thing. The moment, however, a 
recovery is had in either action, it 
must end* both actions. We, therefore, 
agree with the principle decided by 
Schwartz V. Lawrence, 12 Phila. 181, 
that an attachment under the Act of 
1S69 may issue, although an action for 
the goods sold and delivered w:is pend- 
ing at the time the attachment issued." 
Joseph Netter & Co. v. Harding, 6 Pa. 
Dist. 169, 172. 

63. Dean V. Massey, 7 Ala. 601. 
On the contrary, in Morton r. Webb, 
7 Vt. 123, it was held that a plea in 
abatement, alleging the pendency of 
a proceeding in attachment, is not 
good against a subsequent suit in per- 
sonam. 

In Branigan r. Rose, 8 111. 123, the 
court said that if the defendant ap- 
peared in the attachment suit and con- 
verted it into a suit in personam, the 
plea in abatement should aver that 
fact. And in Stockham v. Boyd (Pa.) 



vol m 



258 



ATTACHMENT 



other attachment proceedings are also attempted to be enforced. 

2 Suits in Different Jurisdictions.— The pendency of an attachment 
in one state is not pleadable in bar of a subsequent action in another 
state by the same plaintiff for the same cause against the same de- 
fendant 65 although property sufficient to satisfy the demand has been 
levied on 66 or where nothing is shown to have been made under the 



12 Atl. 258, it was -held that a pend- 
ing attachment against a non-resident 
will not be abated by a pending ac- 
tion by summons in the same court. 

As Dependent on Sufficiency of At- 
tachment to Satisfy Claim.— Chalhss 
v. Smith, 25 Kan. 563. 

As Dependent on Validity of At- 
tachment.— Minniece V. Jeter, 65 Ala. 

2 ' ' 2 

"Suspending Proceedings in Second 
Suit.— Instead of pleading an attach- 
ment in abatement of the writ, the 
fact of the attachment pending for 
the same debt should be made known 
to the court, when it will either suspend 
all proceedings until the attachment 
suit is determined, or render judgment 
with a stay of execution, which can be 
removed or made perpetual, in whole or 
in" part, as the exigency of the case 
may require. Crawford v. Slade, 9 
Ala. 887, 44 Am. Dec. 463. 

64. Scott, Trotter & Tilford v. Cole- 
man, 5 Litt. (Ky.) 349, 351, 15 Am. 
Dec. 71. 

In the Same County. — James v. 
Dowell, 7 Smed. & M. (Miss.) 333; 
Harris v. Linnard, 9 N. J. L. 58. 

In Another County.— Property Lev- 
ied on Insufficient.— Obtaining an at- 
tachment in chancery in one county, 
and levying it upon property not suf- 
ficient to pay the debt, is no objec- 
tion to the prosecution by the same 
complainant of another suit by at- 
tachment in another county and at- 
taching other property. Savary v. Tay- 
lor, 10 B. Mon. (Ky.) 334. 

65. Osgood v. Maguire, 61 Barb., 
affirmed, 61 N. Y. 524. Compare Law- 
rence v. Kemington, 6 Biss. 44, 15 
Fed. Cas. No. 8,141, wherein it was 
held that the pendency of an attach- 
ment in another state for the same 
cause, the property attached there being 
sufficient to pay the judgment, is a bar 
to a second suit. 

In Moore & Co. v. Emerick, 3'8 Ark. 
203, the court said: "The satisfaction 
of the debt through the former attach 

Vol. III 



ment might be shown by plea in the 
nature of a plea puis darrien con- 
tinuance at common law. It was some- 
thing which did not exist when this 
suit began, and could not be used to 
show that this suit was wrongfully 
brought. At common law the plea 
could not, generally, be interposed as 
a complete bar to the suit." 

Until the appearance of the defend- 
ant, attachment process in another 
state is not such an action pending, 
that is, it is not a proceeding against 
the person, as can be pleaded in bar 
to a suit elsewhere. Wilson v. Mechan- 
ics' Sav. Bank, 45 Pa. 488, 494, hold- 
ing further that though the defendant 
enter an appearance to the attach- 
ment, and turned it into an action in 
personam, it would not be a bar to the 
action when the appearance was long 
after the action was brought. 

To an action in assumpsit it cannot 
successfully be pleaded in bar that 
an attachment suit on the same cause 
is pending in another state. Barbe V. 
Click, 20 111. App. 408. See also Doug- 
lass v. Phenix Ins. Co., 138 N. Y. 209, 
33 N. E. 938, 34 Am. St. Kep. 448, 
20 L. E. A. 118, wherein the court, dis- 
tinguishing suits in garnishment from 
suits strictly in personam, said: "The 
pendency of a suit in personam in one 
State is not according to the general 
rule pleadable in abatement of a suit 
subsequently commenced in another 
State, between the same parties, on 
the same cause of action, although the 
courts of the state where the prior suit 
is pending had complete jurisdiction." 
66. Hecker v. Mitchell, 5 Abb. Pr. 
(N. Y.) 453. 

"While the pendency of an attach- 
ment suit in another state is no bar to 
in attachment for the same cause in 
this state, the second attachment will 
be limited "to cover a sum adequate 
as additional security, unless the 
plaintiff choose to abandon the simi- 
lar proceeding" in the other state. 
Trubee v. Allen, 6 Hun (N. Y.) 75. 



ATTACH MIC XT 



259 



attachment proceeding. 67 And where a suit in one court is commenced 
prior to the institution of proceedings cinder attachment in another 
court such proceeding cannot arrest the suit. 68 

And as between state and United States courts, it is held that where one 
of the courts has secured possession or dominion of specific property, 
the suit in the co-ordinate jurisdiction to affect the same property 
should not be dismissed, but before a seizure of the property is made 
therein it should be stayed until the proceedings in the court which 
first obtained jurisdiction of the property are concluded, or ample time 
for their termination has elapsed. 89 

V. PERSONS FOR AND AGAINST WHOM ATTACHMENT MAY 
BE ISSUED. — A. Persons Who May or May Not Have Attach- 
ment.— 1. In General.— Besides the large general class of suitors who 
may be said without question to have the right to prosecute the actions 
in which the remedy of attachment is permitted, it has been specifically 
held that an attachment may be sued out by an administrator on a debt 
due to the estate, 70 by distributees on the property of an administrator 
who has absconded with the assets of the estate, when they can state 
the property taken and its value, and that all the debts of the ancestor 
have been paid and discharged, 71 and by the United States in an action 
in a state court, 72 or in a court in the District of Columbia. 73 But one 
suing under a fictitious name cannot have an attachment. 74 

An assignee of the demand sought to be collected may institute pro- 
ceedings in his own name, 75 except where attachment is asked because 
"the plaintiff's debt was fraudulently contraoted, " such ground being 
personal to the contracting parties. 76 

2. Corporations. — A corporation may proceed by attachment as an 
incident of the power and liability of suing and being sued which per- 
tains to all corporations unless taken away by positive enactment. 77 



67. Clampitt V. Newport, 8 La. Ann. 
124. 

68. King V. Phillips, 8 Bosw. (N. Y.) 
603. 

An attachment of a debt in the hands 
of the defendant by a process of a 
state court, after the commencement 
of a suit in a court of the United 
States, cannot affect the right of the 
plaintiff to recover in the suit. Wal- 
lace r. McConnell, 13 Pet. (U. S.) 136, 
10 L. ed. 95. 

69. Barber Asphalt Pav. Co. r. 
Morris, 132 Fed. 945, 66 C. C. A. 55, 
67 L. R. A. 761, per Sanborn, C. J., 
citing Zimmerman V. SoRelle, 80 Fed. 
417, 25 C. C. A. 518, and Gates v. 
Bucki, 53 Fed. 961, 12 U. S. App. 69, 
4 C. C. A. 116. Compare Nelson V. Fos- 
ter, 5 Biss. 44, 17 Fed. Cas. No. 10,105. 



70. McCoy r. Swan's Admx., 2 Har. 
& J. (Md.) 344. 

71. Barrow v. Barrow, Smed. & M. 
Ch. (Miss.) 101. 

72. United States v. Murdock, 18 
La. Ann. 305, 89 Am. Dec. 651. 

73. United States r. Ottman, 3 Mac- 
Arthur (D. C.) 73, holding also that 
under U. S. Rev. St., §1001, the United 
States need not give the usual under- 
taking. 

74. Davenport V. Doadv, 3 Abb. Pr. 
(N. Y.) 409. 

75. Bcslev r. Palmer, 1 Hill (N. 
Y.) 4S2. 

76. Cheshire Provident Tnst. V. 
Johnston. 5 Fed. Cas. No. 2.659 (Min- 
nesota statute); Ponovar v. Kelsev. 150 
\. Y. 77, 44 N. E. 788, 34 L. R. A. 
248. See infra, VIII. 

77. Swan r. Roberts, 2 Coldw. 
(Tenn.) 153. 

vol. m 



260 



ATTACHMENT 



3. Non-Residents. — a. In General. — An attachment may be issued 
at the suit of a non-resident under a statute granting the right to "any 
person," 78 or to any creditor, 79 and in the absence of legislative enact- 
ment limiting the right to residents. 80 

b. Foreign Corporations.— If a foreign corporation has not complied 
with the requirements of an act fixing certain things as a prerequisite 
to its right to maintain any suit or action in any of the courts of the 
state, it cannot sue out a' writ of attachment, 81 though it has been held 



The term "persons" in attachment 
laws includes corporations as well as 
natural persons. Planters', etc., Bank 
V. Andrews, 8 Port. (Ala.) 404; Tren- 
ton Bkg. Co. v. Haverstick, 11 N. J. 

L. 171. 

The words "creditor" and " debtor" 
include all persons, natural or corpor- 
ate, capable of being debtors or cred- 
itors. Union Bank v. U. S. Bank, 4 
Humph. (Tenn.) 369. 

78. Johnstone v. Kelly (Del.), 74 
Atl. 1099, construing 24 Del. Laws, c. 
239 p. 644." 

As Against Absconding Debtor.— Mc- 
Cready v. Kline, 28 N. 0. 245. 

A non-resident creditor cannot at- 
tach the property of his resident debtor 
when the latter has not absconded nor 
removed to avoid the ordinary process 
of the law. Taylor & Co. v. Buckley, 
27 N. C. 384; Broghill v. "Wellborn, 15 
N. C. 511; see Hills v. Lazelle, 5 Sneed 
(Tenn.) 363, as to a statute which au- 
thorizes in terms a non-resident cred- 
itor to sue out an attachment. 

79. Posey v. Buckner, 3 Mo. 604. 

80. Ala.— Woodley V. Shirley, Minor 
14. Ind.— McClerkin V. Sutton, 29 Ind. 
407. Miss. — Barrow v. Burbridge & Co., 
41 Miss. 622; Hosey v. Ferriere, 1 
Smed. & M. 663. Mo.— Graham V. 
Bradbury, 7 Mo. 281. N. Y.— Matter 
of Marty, 2 Barb. 436, 3 How. Pr. 
208, pointing out that In re Fitzgerald, 
2 Caines 318, had been overruled. 

A foreign administrator, with the 
will annexed, can sue out an order of 
attachment. Dunlap v. McFarland, 25 
Kan. 488. See also Germantown Trust 
Co. V. Whitney, 19 S. D. 108, 102 N. W. 
304, holding that a regularly appoint- 
ed administrator in another state may 
bring suit in attachment, the admin- 
istrator in this case being a corpora- 
tion. 

Residents of District of Columbia 
and Territories. — In Risewick v. Davis, 
19 Md. 82, the court said that in some 

VoL III 



eases statutes "received a strict con- 
struction," holding that "the right 
to an attachment was confined to citi- 
zens of this State or some one of the 
United States, in contra-distinction to 
citizens of the Territories or District 
of Columbia, and of the United 
states." Citizenship was considered a 
jurisdictional fact necessary to be 
averred and proved, and that indif- 
ference to these decisions, statutes 
"were passed, from time to time, to en- 
large the jurisdiction and extend the 
right until it is made common to all 
persons, natural or artificial, who can 
sue" in the courts of the state. 

Compare Yerby v. Lackland, 6 Har. 
& J. (Md.) 446, which held that the 
statute confined the remedy to citi- 
zens of a state. 

An alien was allowed an attachment 
under an absconding debtor act author- 
izing "any creditor residing out of the 
State" to sue out a writ in Ex parte 
Caldwell, 5 Cow. (N. Y.) 293, and 
Bobbins V. Cooper, 6 Johns. Ch. (N. 
Y.) 186. But see Burk V. McClain, 1 
Har & M. (Md.) 236; In re Coates, 3 
Abb. Dec. (N. Y.) 231, 12 How. Pr. 
344. 

Validity of Statute Denying Attach- 
ment to Non-Residents.t — "Whatever 
privilege, benefit or advantage a resi- 
dent citizen may derive from the pro- 
visional remedy of attachment^ . . . 
is equally accessible and available to 
any citizen, of any State of the United 
States, because the constitution of the 
United States has declared that 'the 
citizens of each State shall be entitled 
to all the privileges and immunities of 
citizens in the several slates." Ward 
v. McKenzie, 33 Tex. 297, 7 Am. Rep. 
261. But see contra, Kincaid v. Fran- 
cis, Cooke (Tenn.) 49. 

81. J. Walter Thompson Co. v. 
Whitehed, 185 111. 454, 56 N. E. 1106, 
76 Am. St. Rep. 51, affirming 86 ILL 
App. 76. 



ATTACHMENT 



2G1 



that this rule is directed only against actions on contracts made within 
the state. 82 

c. As Against a Non-Resident. -The right of a non-resident to attach 
the property of a non-resident in a proper case, is generally recog- 
nized. 83 



In Reedy Elev. Co. V. American Gro- 
cery Co., 24 Misc. 678, 53 N. Y. Supp. 
989 {reversing 23 Misc. 520, 51 N. V. 
Supp. 1074, and a/firming 48 IS 1 . Y. 
Supp. 619), is was held that "the pa- 
pers upon which a foreign corporation 
doing business in the state, in rela- 
tion to a transaction arising in such 
state, procures an attachment, must 
show, for the purposes of the attach- 
ment, that the corporation has com- 
I lied with the provisions of the stat- 
ute; and, if such fact does not appear 
in the papers upon which the warrant 
of atttachment was granted, the omis- 
sion of such allegation therefrom is 
legal cause for vacating the warrant 
of attachment." 

Under a South Dakota statute pro- 
hibiting a non-resident corporation 
from transacting in the state any busi- 
ness, acquiring or disposing of any 
property, instituting or maintaining 
any action at law or otherwise, until 
such corporation shall have filed a copy 
of its charter or articles of incorpora- 
tion and appointed a resident agent 
upon whom service of process may be 
had, an attachment obtained without 
compliance with such requirement will 
be dissolved on motion. Bradley, Met- 
calf & Co. v. Armstrong, 9 S. D. 267, 
68 N. W. 733. 

By Assignee of Foreign Corporation. 
A statute requiring a foreign corpor- 
ation to pay a license fee "does not 
prohibit the maintenance of an action 
by the assignee of a foreign corpora- 
tion, and accordingly the question of 
compliance w T ith the statute upon the 
part of the assignor is not material to 
the plaintiff's right to sue." Box 
Board, etc., Co. V. Vincennes Paper Co., 
45 Misc. 1, 90 N. Y. Supp. 836. 

82. Batchelder, etc., Co. v. Knopf, 
54 App. Div. 329, 66 N. Y. Supp. 513, 
decided under a statute providing that 
"an action may be maintained by ;i 
foreign corporation in like manner and 
Subject to the same regulations as 
where the action is brought by a do- 



mestic corporation, except as other- 
wise specifically prescribed by law," 
and holding that as the corporation did 
no business within the state it did not 
need a license. The contract was made 
in another state. The case of Reedy 
Elevator Co. v. American Grocery Co., 
24 Misc. 678, 53 N. Y. Supp. 9S9, was 
distinguished on the ground that there 
the papers upon which the attachment 
was granted averred that the plaintiff 
was a foreign corporation doing busi- 
ness within the state. 

Where the papers do not disclose the 
fact that the contract was made within 
the state, it is not necessary to aver 
compliance with the statutory condi- 
tion in the matter of the certificate, 
for the purposes of an attachment. 
Box Board, etc., Co. v. Vincennes Pa- 
per Co., 45 Mise. 1, 90 N. Y. Supp. 
836, citing Parmele Co. v. Haas, 171 N. 
Y. 579, 64. N. E. 440; Lukens Iron & 
Steel Co. v. Payne, 13 App. Div. 11, 
43 N. Y. Supp. 376. 

83. HI. — Givens v. Merchants' Nat. 
Bank, 85 111. 442. Ky— Gray v. Bris- 
coe, 6 Bush. 687. La. — Tyson v. Lan- 
sing, 10 La. 441. Md. — HodgsoTi V. 
Southern Bldg. & L. Assn., 91 Md. 439, 
Hi Atl. 971, against a non-resident cor- 
poration. N. Y.— Beady r. Stewart, 
Code Bep. (N. S.) 297. Pa.— Mulliken 
r. Aughinbaugh, 1 Pen. & W. 117; II. B. 
Claflin Co. v. Weiss Bros., 16 Pa. Co. 
( t. 2 17; John Ray Clark Co. v. Toby 
Val. Supplv Co., 14 Pa. Co. Ct. 344; 
Long v. Girdwood, 28 W. N. C. 299. 
S. O.— Gibson v. Everett, 41 S. C. 22, 
19 S. E. 286; Sheldon r. Blauvelt, 29 
S. C. 453, 7 S. E. 593, 13 Am. St. Rep. 
749, 1 L. R. A. 6S5. Tenn. — Merchant 
v. Preston, 1 Lea 280. Tex. — Grizzard 
v. Brown, 2 Tex. Civ. App". 584, 22 S. 
\V. 252. 

The defendant must appear to be 
indebted within the state. In re Fitch, 

2 Wend. (N. 7.) 298; Matter of Marty. 

3 Barb. (X. Y.) 229, affirming, on other 
grounds, 2 Barb. 436, 3 How. Pr. 208, 
2 Kdm. Sel. Cas. 454. 

vol. m 



262 



ATTACHMENT 



B. Persons Against Whom Attachment May Be Issued. — 1. In 
General. 84 — Against a Trustee. —An attachment will not lie against a 



Whether Home State Will Permit 
Remedy in Foreign Jurisdiction.— A 
citizen of one state may sue out an 
attachment against a corporation of 
the same state, at home or in a for- 
eign jurisdiction, though such corpora- 
tion has become insolvent and the at- 
tachment may result in a preference, 
when no law of the home state for- 
bids it. Schindelholz v. Cullum, 55 
Fed. 885, 12 U. S. App. 242, 5 C. C. A. 
293. 

Unliquidated Damages.— A statute 
providing that when any person being 
a non-resident of the state " 'is in- 
debted to any person also a non-resi- 
dent, either by judgment, note, or oth- 
erwise,' " the process may be allowed, 
relates only to a cause of action for 
which either debt or indebitatus as- 
sumpsit will He. Hazard v. Jordan, 12 
Ala. 180. See also, infra, VII. 

"The restriction in the statute is 
against a non-resident bringing an ac- 
tion against a foreign corporation; but 
there is no restriction in the statute 
against a foreign corporation bringing 
an action in this state against a non- 
resident." Flynn v. White, 122 App. 
Div. 780, 107 N. Y. Supp. 860. 

"In an action brought by a foreign 
plaintiff against a foreign defendant to 
recover the agreed price of goods sold 
in a foreign state said foreign plain- 
tiff is not entitled, under a warrant of 
attachment, to levy upon an indebted- 
ness due the foreign defendant from a 
foreign corporation." Flynn v. White, 
122 App. Div. 576, 107 N. Y. Supp. 860. 

In Tennessee, under an early stat- 
ute, an original attachment would not 
lie unless the plaintiff or defendant 
was a citizen of the state. A subse- 
quent statute authorized an attach- 
ment by a non-resident against a non- 
resident in equity, and later at law in 
certain cases. See Taylor v. Badoux, 
92 Tenn. 249, 21 S. W. 522; Decatur 
Bank v. Berry, 3 Humph. 590; Webb 
& Co. v. Lea, 6 Yerg. 473; Kincaid v. 
Francis, Cooke 49. 



The law giving to non-resident credi- 
tors the benefit of the attachment law 
against non-resident debtors, passed in 
1824, (Clay's Dig. 57, 9) was not in- 
tended to give them the benefit of this 
particular law. "It is confined by the 
terms of the act to cases where the 
non-resident debtor 'removes his prop- 
erty into, or holds property in this 
state.' With no propriety can this lan- 
guage be applied to the foreign ex- 
ecutor or administrator, for if the 
property had ever come to his posses- 
sion, it would not be subject to the at- 
tachment of the resident creditors, as 
was held in the case of Loomis v. Allen, 
supra. . . . The act of 1807, is, to 
say the least, one of doubtful policy, 
and is by its express terms, confined to 
cases where one contracting debts in 
this state, removes, leaving property 
behind him, and dies. In such a case, 
it seems to have been considered by 
the legislature proper, that the credi- 
tors of the deceased should have a 
remedy against the property, instead of 
compelling them to take out letters of 
administration, or seek payment from 
the foreign administrator. No such 
considerations apply in the case of the 
foreign creditor, and there is therefore 
no hardship in requiring him to take 
out administration, if he desires to 
subject property of the deceased in this 
state to the payment of his debts." 
Hemingway V. Moore, 11 Ala. 645. 

84. Fictitious Names. — That an at- 
tachment cannot proceed against a de- 
fendant by a fictitious name, see Solin 
ger v. Patrick, 7 Daly (N. Y.) 408. 



An American consul residing abroad, 
sued as a member of a partnership the 
other member of which is not entitled 
to any privilege or exemption from 
legal process, may be proceeded against 
as a non-resident. Caldwell v. Barclay, 
1 Dall. (U. S.) 305 n., 1 L. ed. 149 n. 

One not liable for the debt sued for 
is not a proper party defendant. Beeler 
v. Perry, 128 Mo. App. 234, 107 S. W 
1008. 



Vol. Ill 



ATTACTIMKXT 



2G3 



trust co as such, 88 either upon the ground that he is an absent debtor," 
or a non-resident. 87 

Against a Guardian. — Where attachments of properly in the hands 
of trustees of a principal debtor are wholly regulated by statute, and 
provision is not made for such a remedy againsl ;i guardian, an attach- 
ment, it has been held, will not lie, 88 and minors claiming redress against 
guardians cannot pursue them by ordinary attachment. 89 

Against an Insane Person. — Tt has been held that in an action at law 
which may be maintained against a lunatic, a proceeding against his 
estate by attachment is valid,'"' though not where it is necessary to es- 
tablish an intent which by reason of insanity, the defendant could not 
have entertained, the intent not being one the existence of which is 
inferred from the act itself. 91 

Against a Minor. — When the contracts of a minor are binding upon 
him and may be reduced to judgment, they may be enforced by writs of 
attachment as in other cases in the absence of statutes to the contrary. 92 



85. Smith V. Riley, 32 Ga. 356. 

Public Officer. — "No case of acknowl- 
edged authority is found which holds 
that a public officer of a state, charged 
with a trust created by a public statute 
of the state in respect to funds or se- 
curities in his possession, can be made 
liable in respect to them by an attach- 
ment in favor of a person not claim- 
ing under the trust. Decisions in 
analogous cases, as to persons holding 
property or funds by authority of a 
statute or of the law, under a trust 
imposed in regard to them, are numer- 
ous. Brookes v. Cook, 8 Mass. 247; 
Colby v. Coates, 6 Cush. 558; Columbian 
Book Co. V. De Golyer, 115 Mass. 67, 
69; Harris V. Dennie, 3 Pet. 292; Buch- 
anan v. Alexander, 4 How. 20. The 
principle was applied by the court of 
appeals of Virginia, in Rollo V. Andes 
Ins. Co., 23 Gratt. 509." Providence 
& S. S. S. Co. v. Virginia F. & M. Ins. 
Co., 11 Fed. 284. 

86. Jackson V. Walsworth, 1 Johns. 
Cas. (N. Y.) 372. 

87. Cox v. Henry, 113 Ga. 259, 38 
S. E. 856. 

88. Hanson V. Butler, 48 Me. 81. 
See also Ross v. Edwards, 52 Ga. 24, 
holding that the statute does not au- 
thorize an attachment against a luna- 
tic or his guardian, both being non- 
residents. 

Under a statute requiring every 
creditor of a ward to exhibit his claim 
to the guardian w it n ; n s ; x nionths after 
specified notice given and providing 



that, if he fails to do so, he shall be 
forever barred of all claim therefor 
against the guardian, unless there shall 
be surplus property in his hands, after 
paying all debts and expenses and al- 
lowances made by the probate court, 
a suit commenced by attachment and 
summons will be dismissed as to the 
attachment if the claim was not ex- 
hibited as required, but may be prose- 
cuted to judgment under the sum- 
mons. Wakefield Trust Co. v. Whaley, 
17 R. I. 760, 24 Atl. 780. 

As an Individual. — An attachment 
against a certain person "as com- 
missioner over a lunatic," is a suit 
against the person named in his in- 
dividual capacity, when such descrip- 
tion is without meaning under the laws 
of the state. Ross r. Edwards, 52 Ga. 
24. 

89. Collins v. Batterson, 3 La. 212. 

90. Weber r. Weitling, 18 N. J. Eq. 
111. To the contrary, Bee Ross v. Ed- 
wards, 52 Ga. 24, when the guardian 
and lunatic are both non-residents. 

91. Chambers, etc., Glass Co. V. 
Roberts, 4 A pp. Div. 20, 38 N. Y. Supp. 
301, where attachment was sought on 
the ground that defendant -had left the 

State with intent to defraud his credi- 
tors, "that intent will not be in 
ferrod," said Rumsey, J., "as a pre- 
sumption from the simple act of de- 
parture." 

92. Dillon v. Burnham, 43 Kan. 77, 
22 Pac. 1016. 

vol. in 



264 



ATTACHMENT 



Against a Female Debtor. — Where females are exempt from im- 
prisonment for debt, if under the attachment law a defendant can only 
appear and defend upon putting in special bail, a female debtor cannot 
be proceeded against by writ of attachment. 93 But under special 
statute an attachment may issue against a female debtor trading as a 
feme sole. * 

2. Against Corporations.- Generally, an attachment will run against 
a corporation upon any ground which might properly be alleged against 
such a defendant. 95 Thus, an attachment may issue against a domestic 



93. E. S. Higgins Carpet Co. V. 
Hamilton (N. J.), 28 Atl. 716; Van 
Emburgh v. Pullinger, 16 N. J. L. 457. 

94. Brent v. Taylor, 6 Md. 58, under 
a statute authorizing an attachment in 
such a case, where it was held that the 
provisions of the general statutes 
should be observed, in so far as the 
same were not inconsistent with the 
design and purposes of the special 
statute. 

A statute may provide for an attach- 
ment against a female debtor. See 
Davis v. Mahany, 38 N. J. L. 104. 

95. State Nat. Bank V. Union Nat. 
Bank, 68 HI. App. 25, affirmed, 168 111. 
519, 48 N. E. 82; Marr v. Washburn, 
etc. Mfg. Co., 167 Mass. 35, 44 N. E. 
1062. 

The word "person" in an attach- 
ment law includes corporations, both 
foreign and domestic. Gokey v. Boston, 
etc. E. Co., 130 Fed. 994; Mineral Point 
E. Co. v. Keep, 22 111. 9, 74 Am. Dec. 
124. 

"He," "she," "they," relating to 
the word "defendant" in the act, does 
not exclude the idea of suit against a 
corporation. Mechanics' Nat. Bank V. 
Miners' Bank, 13 W. N. C. (Pa.) 515. 

Exclusiveness of Special Statutes. — 
In Michigan Dairy Co. V. Eunnels, 96 
Mich. 109, 55 N. W. 617, the sole ques- 
tion was whether a writ of attachment 
may issue against a domestic corpora- 
tion in the county of its location in 
favor of one also a resident of the 
county, in like cases as in suits be- 
tween individuals. By statute a rem- 
edy by attachment was given against 
domestic corporations, other than rail- 
road companies, in all cases in which 
the plaintiff resided in a county other 
than the home county of the corpora- 
tion, and in case attachment of prop- 
erty could be had. The statute pro- 
vided "for an affidavit which shall set 
out the cause for issuing the attach- 
ment, and, among others, prescribes that 

VoL III 



one sufficient cause shall be that the 
defendant is a foreign corporation. 
This reference to foreign corporations 
does not exclude the remedy against 
domestic corporations. The true con- 
struction, we think, is that while, as 
against foreign corporations, that fact 
alone is sufficient to authorize the writ, 
in a suit against a domestic corpora- 
tion some other ground in the statute 
specified shall be set out." 

A statute providing as a ground of 
attachment, "that the defendant is a 
corporation whose chief office or place 
of business is out of the state," does 
not authorize an attachment on that 
ground against a domestic corporation 
which is actively engaged in carrying 
on its principal business operations in 
this state, and therefore maintaining 
a place of business within its limits. It 
was held immaterial that the chief of- 
fice was in another state, the chief 
place of business being within the 
state. Eocky Mountain Oil Co. v. Cen- 
tral Nat. Bank, 29 Colo. 129, 67 Pac. 
153. 

The assets of an insolvent corpora- 
tion constitute a trust fund for the 
benefit of all its creditors, and no 
preference can be maintained based 
upon any action or proceeding of a 
creditor taken with knowledge of the 
insolvent condition of such corpora- 
tion. An attachment so procured will 
be dissolved that the property may 
be restored to the receiver for ratable 
distribution. Compton v. Schwabacher 
Bros. & Co., 15 Wash. 306, 46 Pac. 338. 
But compare Eeed v. Penrose, 2 Grant 
Cas. (Pa.) 472, wherein it was held that 
a general statute authorizing attach- 
ments against corporations includes in- 
solvent as well as solvent corporations. 
Upon Personal and Real Property. — 
Under a statute providing that "the 
property of any corporation . . . 
are liable to attachment on mesne pro- 
cess and levy on execution for debts 



ATTACHMENT 



265 



corporation upon an allegation that it is about to remove its property 
without the jurisdiction to the injury of the creditor, 00 but it cannot 
issue against a corporation under a provision authorizing the writ 
against an absent, absconding or concealed defendant. 97 

3. Against Deceased Persons, Estates or Successions.— An attach- 
ment cannot be sued out against a deceased person, 98 nor against the 
estate of such a person, 99 neither can a writ of attachment issue against 
an heir for the debt of his ancestor. 1 

Against Executor or Administrator. — Unless specially authorized by 
statute in certain cases, 2 an attachment cannot issue against an executor 
or an administrator, as this would interfere with the rule of law which 
requires the marshaling of assets, and the priority or equality of pay- 
ment to the creditors of the estate, 3 though such a writ may issue upon 



of the corporation in the manner pre- 
scribed by law," the lands as well as 
the personal property of a corporation 
are subject to attachment on mesne pro- 
cess. Poor v. Chapin, 97 Me. 295, 54 
Atl. 753. 

Under a New York statute authoriz- 
ing an attachment against a domestic 
corporation when its principal place of 
business is not in the city of New 
York, when there are conflicting affi- 
davits on the point whether that is or 
is not its principal place of business, 
it becomes a question of fact. It is 
not enough to declare in the certificate 
that a particular place is or will be its 
principal place of business, but such 
must be so in fact. Rothschild v. Dith- 
redge Flint-Glass Co., 22 Civ. Pro. 314, 
20 N. Y. Supp. 373, distinguishing 
Blumenthal v. Hudson Boot & S. Mfg. 
Co., 21 Civ. Proc. 217, 15 N. Y. Supp. 
826, holding that a domestic corporation 
having once declared by its certificate 
of incorporation as to the principal 
place of business, it cannot claim an- 
other place as its principal place unless 
by filing an amendment certificate giv- 
ing notice of such a change in con- 
formity with the statute. 

96. Mineral Point R. Co. V. Keep, 22 
111. 9, 74 Am. Dec. 124. 

97. Goldmark v. Magnolia Metal Co., 
65 N. J. L. 341, 47 Atl. 720; Ferrier v. 
American Glass Silvering Co., 34 How. 
Pr. (N. Y.) 496, 3 Abb. Pr. (N. S.) 419; 
McQueen V. Middleton Mfg. Co., 16 
Johns. (N. Y.) 5. 

98. Purnoll v. Frank, 68 Miss. 639, 
10 So. 60. But compare Bank of North 
America V. McCall, 4 Binn. (Pa.) 371, 
as to an attachment in a foreign coun- 
try, wherein the court said that there 



is not anything so monstrous in the 
attachment of a. dead man's property 
for the purpose of paying his debts, as 
to make the proceedings void on that 
account. 

See, infra, VI. 

99. Miller v. Leeds, 52 N. J. L. 366, 
19 Atl. 261. 

The creditor must provoke an ad- 
ministration of the estate in pursuance 
of law. Cheatham v. Carrington, 14 
La. Am. 696. 

In Tennessee, a statute authorized 
an attachment, "where any person liable 
for any debt or demand residing out of 
the state, dies, leaving property in the 
state." See Sharp v. Hunter, 7 Coldw. 
389. 

1. Peacocks v. Wildes, '8 N. J. L. 
179. But in Carrington V. Didier, 8 
Gratt. (Va.) 260, it was held that a 
creditor of a deceased debtor may pro- 
ceed by foreign attachment against the 
heirs residing abroad to subject land 
or its proceeds, in the state, descended 
to- them from the debtor. 

2. Ga. — Holloway v. Chile9, 40 Ga. 
346 (when the property of the dec 

is about to be removed); Cox v. Felder, 
36 Ga. 597. Me.— Thayer V. Comstock, 
39 Me. 140. N. J.— Muller c. Lee.K 52 
N. J. L. 366, 19 Atl. 261, in the case 
of joint debtors and only on affidavit 
that the executor either had absconded 
or was not resident in the state. 

3. TJ. S. — Patterson V. McLaughlin, 
1 Cranch C. C. 352, 18 Fed. Cas. No. 
10,828. N. J. — Haight 0. Bergh. 15 N. 
J. L. 183. N. Y — In re Hurd, 9 Wend 
465. S. C— Weyman V. Murdock, Harp. 
L. 125. 

As Executrix De Son Tort. — Under a 
statute providing "that every original 

vol. m 



266 



ATTACHMENT 



a proper ground against one acting as executor or administrator when 
he is personally liable. 4 

4. Several Defendants. - If there is ground for an attachment against 
one" of several defendants, though not as to the others, the writ may 
issue against him, 5 and when trespassers are jointly sued, and an at- 
tachment is the leading process, issuing on an affidavit that discloses a. 
ground of attachment as to all the defendants, it is properly issued 
against the defendants jointly— that is, it is proper to embrace all the 
defendants in one writ. 6 

As Against Joint Debtors. — In many cases it is held that an attach- 
ment will not lie against a joint obligor, while the other remains sub- 
ject to the ordinary process of the law, 7 though other cases hold that 



writ issued against a female, founded 
on a contract, shall be a writ of sum- 
mons," an attachment will not lie 
against an executrix de son tort in an 
action of assumpsit to recover for 
goods sold to the testator. Martin V. 
Hand, 11 R. I. 306. 

4. In re Galloway, 21 Wend. (N. Y.) 
32, 34 Am/ Dec. 209; Wickham v. Stern, 
18 Civ. Proc. 63, 9 N. Y. Supp. 803. 

5. Brewster v. Honigsburger, 2 N. 
Y. Code Eep. 50; North West Bank v. 

• Taylor, 16 Wis. 609. 

6. Hadley v. Bryars, 58 Ala. 139. 

7. Kouns v. Brown, 2 T. B. Mon. 
(Ky.) 146, holding that the word 
"debtor" should be understood to ap- 
ply to one or more, as the demand may 
be sole, joint or several. 

All Defendants Must Be Non-Resi- 
dents. — Taylor v . McDonald, 4 Ohio 150. 

The fact that one casually present 
was served with process is not ground 
for refusing the attachment which the 
statute allows upon the ground of the 
non-residence alone of the debtor hav- 
ing property in the state. Jackson V. 
Perry, 13 B. Mon. (Ky.) 231. 

An attachment will not lie against 
an absent or absconding joint debtor or 
partner, if one or more of the joint 
debtors or partners reside within the 
state. Bright v. Hand, 16 N. J. L. 273; 
Barber v. Robeson, 15 N. J. L. 17; 
Leach v. Cook, 10 Vt. 239. 

On Charge of Disposing of Property 
With Intent To Defraud Creditors.— 
An order, under a statute authorizing 
"an order by a commissioner of a 
writ of attachment in all eases in which 
a capias ad respondendum might issue 
against a defendant or defendants on 
an action of contract," against two 
partners, adjudging that tkey are about 

vol in 



to dispose of their property with the 
intention of defrauding creditors, can- 
not be sustained against either unless 
it is good against both. H. B. Claflin 
Co. v. Detelbach (N. J.), 28 Atl. 715. 
On Ground of Collection Endangered 
By Delay. — Under a statute authoriz- 
ing an attachment "if the defendant 
have no property in this state subject 
to execution, or not enough thereof to 
satisfy the plaintiff's demand, and the 
collection of the demand will be en- 
dangered by delay," an attachment 
cannot be maintained against one of 
several obligors on promissory notes 
when the evidence shows conclusively 
not only that there was sufficient prop- 
erty subject to execution owned by 
those bound on the notes, but the col- 
action of the demands would not have 
been' endangered by delay. Francis V. 
Burnett, 84 Ky. 23. 

An affidavit against two joint debtors, 
insufficient as to one, will not authorize 
an attachment against the property of 
both. Hamilton v. Knight, 1 Blackf. 
(Ind.) 25. 

When a plea in abatement, denying 
that one was absent or concealed, was 
sustained, the attachment will be dis- 
charged as to all when the case was 
one in which all were sued as concealed 
or absent debtors. Leach V. Cook, 10 
Vt. 239. 

Where a statute authorizes an attach- 
ment against one or more of several 
joint debtors, and an' attachment has 
been issued against all, the suit should 
not abate as to a defendant not ame- 
nable to the attachment, but the suit as 
to the attachment becomes severed 
and will proceed as to the one or more 
against whom it was properly issued. 
Jones v. Lunceford, 95 111. App. 210. 



ATTACHMENT 



267 



the plaintiff may proceed by attachment against the property of one 
alone of several joint obligors under circumstances which will justify 
that proceeding as against him under the provisions of the attachment 
law. 8 

As Against Joint and Several Debtors. — It is generally held, however, 
that where there are two or more debtors jointly and severally liable, 
the plaintiff may prosecute the suit against one or more upon ordinary 
process and against the others by attachment. 9 

5. Against Non-Residents. — a. In General.— Non-residence generally 
as a ground for issuing an attachment will be found treated in another 
part of this article. 10 



And under such a statute if an at- 
tachment is sued out upon two grounds 
against two joint defendants, upon al- 
legations that one is about to remove 
from the state, with the intent to have 
his effects so removed, to the injury of 
his creditors, and also that both are 
about fraudulently to sell and assign 
their property and effects so as to hin- 
der and delay their creditors, and the 
allegation as to both is not sustained 
as to one, the attachment must fall as to 
both. Lawrence V M Steadman, 49 111. 270, 
wherein the court said that had the 
affidavit against the one alone been 
filed, describing the claim as a joint 
debt, and a writ of attachment had is- 
sued against him, and the other had 
been summoned, and the issues had 
been found against them, a judgment 
would have been rendered against them 
for a recovery of the debt, and an or- 
der for the sale of the property of the 
one which had been seized under the 
attachment. 

If there be a cause of attachment 
against one co-defendant, save for non- 
residency, an attachment should be al- 
lowed against the others under a statute 
providing that in an action for the re- 
covery of money, where the action is 
against a defendant, or several de- 
fendants, who, or some one of whom, 
has departed from this state with in- 
tent to defraud his creditors, or so con- 
ceal himself that a summons cannot be 
served upon him, the plaintiff may have 
an attachment at or after the com- 
mencement of the action. Duncan v. 
Headley, 4 Bush (Ky.) 45; Mills v. 
Brown, 2 Met. (Ky.) 404. 

8. Austin & Co." r. Burgett, 10 Iowa 
302; Smith, etc. Co. r. Coopers, 9 Iowa 
376; Patterson v. Stiles, 6 Iowa 54; 
Crump v. Wooten, 41 Miss. 611. 



One a Non-Resident. — Baird V. Wal- 
ker, 12 Barb. (N. Y.) 298, 2 Edm. Sel. 
Cas. 268. 

One an Absconding Debtor. — In re 
Chipman, 14 Jones. (X. V.) 'J 17. 

Under Statute Making Joint Obliga- 
tion Joint and Several. — Jefferson 
County v. Swain, 5 Kan. 376. To the 
same effect, see Searcy v. Platte County, 
10 Mo. 269. 

9. Ind. — Higgins v. Pence, 2 Ind. 
566; Leach V. Swann, 8 Blackf. 68. 
la. — Chittenden & Co. r. Hobbs, 9 Iowa 
417, overruling Courrier v. Cleghorn, 3 
Greene 523; Ogilvie r. Washburn, 4 
Greene 548. Mo. — Franciseus v. Bridges, 
18 Mo. 208. 

Under Statutory Authority. — Tim- 
berlake v. Thayer (Miss.), 16 So. 878; 
Swan v. Roberts, 2 Coldw. (Tenn.) 153. 

Statute Providing for Judgment 
Against One or More. — A statute of 
Arkansas providing that judgment may 
be given " 'for or against one or more 
of several defendants,' " is as applic- 
able to suits by attachment as to suits 
in any other form, and if a good ground 
of attachment against one whose prop- 
erty has been attached is proven it is 
enough. Allen r. Clayton, 11 Fed. 73, 
T> McCrary 517, where the court said: 
"If the joint property had been at- 
tached a different question would have 
been presented." 

10. See, infra, VIII. 
Notwithstanding Louisiana Acts 1900, 

No. 23, non-residents are Bubject to at- 
tachment. Hornbeck v. Gilmer, 110 La. 
51)0, 34 So. 651. 

One who has held himself out as the 
president of a bank in another state, 
cannot deny that character nor aver in 
a controversy with one who has dealt 
with that institution while he acted as 
such, that he was not qualified to hold 

vol. in 



2GS 



ATTACHMENT 



Against an Alien. — An attachment may be levied on the property of 
foreigners residing outside the United States, and whether they have 
been residents of the state or not. 11 

b. Foreign Corporations. — An attachment may go against a foreign 
corporation as well as against natural persons. 12 The word " person" 



that office, when by the charter of the 
bank the president is required to be a 
citizen of that state. St. Mary's Bank 
v. St. John, 25 Ala. 566, (under an 
equitable attachment statute). 

11. Barney V. Patterson, 6 Har. & J. 
(Md.) 182; Hepburn's Case, 3 Bland 
(Md.) 95. 

A party may not be a citizen for 
political purposes, and yet be a citizen 
for commercial or business purposes, 
and a debtor residing and doing busi- 
ness in the state is, in contemplation 
of attachment laws, a citizen of the 
state, and as such is liable to be pro- 
ceeded against as an absconding debtor. 
Field V. Adxeon, 7 Md. 209. 

12. Ga. — South Carolina E. Co. v. 
McDonald, 5 Ga. 531. 111.— Mineral 
Point R. Co. v. Keep, 22 111. 9, 74 Am. 
Dec. 124. Ind.— U. S. Capsule Co. v. 
Isaacs, 23 Ind. App. 533, 55 N. E. 832. 
La. — Martin, etc. Co. v. Alabama 
Branch Bank, 14 La. 415. N. Y— India 
Eubber Co. v. Katz, 65 App. Div. 349, 
72 N. Y. Supp. 658; Maury v. American 
Motor Co., 25 Misc. 657, 56 N. Y. Supp. 
316, affirmed, 38 App. Div. 623 (memo.), 
57 N. Y. Supp. L142; Condouris v. Im- 
perial Turkish Tobacco, etc. Co., 3 
Misc. 66, 22 N. Y. Supp. 695. Va.— 
Guarantee Co. v. First Nat. Bank, 95 
Va. 480, 28 S. E. 909. 

Though They Do Not Transact Busi- 
ness in the State. — Cincinnati, etc., E. 
Co. v. Pless, 3 Ga. App. 400, 60 S. E. 8. 

Special Statute Not Exclusive. — A 
statute providing that attachments may 
issue against foreign corporations "who 
are transacting business within this 
state," is not exclusive of the right_ to 
issue an attachment against a foreign 
corporation not doing business in the 
state under the general law. Wilson V. 
Danforth, 47 Ga. 676. 

Effect of Requirement to Give Special 
Bail. — The word person would embrace 
a corporation, but for the other provis- 
ions of the attachment law which seek 
to secure special bail to the plaintiff's 
action, on which the attachment is to 



to be dissolved. Vogle v. New Granada 
Canal, etc., Co., 1 Houst. (Del.) 294. 

Forfeiture in Home State. — ' ' If it be 
conceded it is proven this bank has for- 
feited its franchises under the laws of 
Rhode Island, the obligation of its 
contracts survives, and this action may 
be maintained on the ground it is a 
proceeding against the property of the 
bank not in the hands of a bona fide 
purchaser, to enforce payment. There 
is nothing in the comity which exists 
| between states, that makes it improper 
our courts should afford this remedy, 
notwithstanding the fact, by the local 
laws of the state which created this 
corporation, its effect are in the hands 
of a receiver." City Ins. Co. v. Com- 
mercial Bank, 68 111. 348, 351. 

Against Receiver of Insolvent For- 
eign Corporation. — In Pond v. Cooke, 45 
Conn. 126, 29 Am. Rep. 668, it was held 
that property within the state, which 
when the attachment was sued out, 
was in the hands of the receiver of an 
insolvent foreign corporation, was not 
subject to the attachment, the court 
saying: "The statute of New Jersey, 
under which this receiver was ap- 
pointed, authorizes proceedings against 
insolvent corporations, like the "Watson 
Manufacturing Company, to settle their 
estates by dividing their property 
among their creditors in a similar man- 
ner to other insolvent statutes in other 
states where trustees are appointed. 
Obviously, in the State of New Jersey 
the property in question could not have 
been taken from the receiver by a 
creditor of the corporation; and we 
think it should not be done here." 
But see Dunlop v. Paterson Fire Ins. 
Co., 12 Hun (N. Y.) 627, where it was 
held that though a receiver had been 
appointed in the other state, property 
of a foreign corporation, actually with- 
in the state was liable to attachment 
at the suit of domestic creditors. 

Dissolution of Corporation. — Attach- 
ment cannot be sustained against a 
foreign corporation after it has ceased 
to exist. Hintermeister v. Ithaca Or- 



be dissolved and the property attached | gan, etc., Co., 3 Kulp (Pa.) 
Vol. Ill 



90. 



ATTACHMENT 



269 



includes bodies politic and corporate, both foreign and domestic," and 
"debtor" includes a foreign corporation. 14 

When Engaged in Business Within the State. — A foreign corporation 
though engaged in business within the state, is held to be a non-resi- 
dent within the meaning of attachment laws. 15 And some cases hold 
that a foreign corporation, though it has complied with the require- 
ments of the law authorizing it to do business as a foreign corporation, 
and though it has an office and property, and does business, and exer- 
ts its corporate functions in the state, is still a non-resident and is 
amenable to process of foreign attachment, 16 while others hold that an 
attachment will not lie against a foreign corporation when the law con- 
fers upon it the right of transacting and carrying on within the state 
the business for which it was incorporated. 17 



13. Mineral Point R. Co. v. Keep, 
22 111. 9, 74 Am. Dec. 124. See also: 
Ga. — South Carolina E. Co. ». McDon- 
ald, 5 Ga. 531. Pa. — Bushel v. Coin. 
Ins. Co., 15 Serg. & R. 173. Va.— United 
States Bank v. Merchants' Bank, 1 
Eob. 605. 

14. South Carolina R. Co. v. Mc- 
Donald, 5 Ga. 531; Voss V. Evans Mar- 
ble Co., 101 111. App. 373. To the con- 
trary, see McQueen t>. Middletown Mfg. 
Co., 16 Johns. (N. Y.) 5. 

15. D. C. — Barbour V. Paige Hotel 
Co., 2 App. Cas. 174. Ga. — South Caro- 
lina R. Co. v. People's Sav. Inst., 64 
Ga. 18. Va.— Cowardin v. Universal 
Life Ins. Co., 32 Gratt. 445. 

16. Del. — Albright V. United Clay 
Production Co., 5 Penne. 198, 62 Atl. 726. 
111.— Voss v. Evans Marble Co., 101 111. 
App. 373, relying upon Mineral Point 
R. Co. v. Keep, 22 111. 9. Pa.— Beal v. 
Toby Val. Supply Co., 13 Pa. Co. Ct. 
273. 

Statutory Immunities and Privileges 
of Home State. — When a statute con- 
fers on a foreign railroad corporation 
the right to extend its road through 
the state, and declares that it shall be 
entitled to all privileges, rights and 
immunities and subject to all such re- 
strictions as are granted, made, and 
prescribed for its benefit and conferred 
on it by the act of incorporation of the 
state of its creation, such foreign cor- 
poration is not subject to attachment 
unless it is so subject in the state that 
created it. Martin & Merriwether V. 
Mobile, etc., R. Co., 7 Bush (Ky.) 116. 

17. Phillipsburgh Bank r. Lacka- 
wanna R. Co., 27 N. J. L. 206, as it is 
a "corporation recognized by the laws 
of the state." 



Under a New Jersey statute, which 
authorizes a writ of attachment against 
"corporations not created or recognized 
as corporations of this state by the 
laws of this state," a corporation, no 
matter where incorporated, which does 
not do business in the state, and does 
not have officers residing there upon 
whom process may be served, is non- 
resident. Brand v. Auto Service Co., 
75 N. J. L. 230, 67 Atl. 19. 

In Goldmark v. Magnolia Metal Co., 
65 N. J. L. 341, 47 Atl. 720, Depue, C. 
J., said: "Following the principle laid 
down in Evans v. Perrine, and the 
opinion of Chief Justice Beasley in that 
case, the true doctrine is to place a 
corporation not created or recognized 
by the laws of this state on the foot- 
ing of a non-resident individual, ex- 
empt from writ of foreign attachment 
only when it does business in this 
state and has officers residing in this 
state upon whom process can be 
served at their homes." 

As a Non-Resident. — A foreign cor- 
poration, having its chief office or place 
of business within the state, cannot 
be sued by attachment upon an allega- 
tion that "the defendant is not a resi- 
dent of this state." Farnsworth v. 
Terre Haute, etc., B. Co., 29 Mo. 75. 

Foreign Corporation Engaged in In- 
terstate Commerce. — A provision that 
compliance with a statute requiring 
domestication as a condition to doing 
business within the state, would ex- 
empt a foreign corporation from attach- 
ment, does not apply to a foreign cor- 
poration engaged in interstate com- 
merce in whole or in part, such a cor- 
poration not being required to comply 
with the statute. And a mere volun- 

voi. in 



270 



ATTACHMENT 



c. Foreign Administrator or Executor. — In some jurisdictions, 
statutes authorize the issuing of the writ of attachment against a 
foreign administration or executor, 18 otherwise it seems to be the gen- 
eral rule that an attachment will not lie against such persons in their 
representative capacity. 19 

VI. WHAT MAY BE ATTACHED. — A. In General. — Where 
an attachment statute is not general in terms as to the property of the 
' defendant upon which the process may be levied, but prescribes the 
kind of property and interests therein upon which a levy may be made, 
the right to attach property and interests is strictly controlled by such 
statutory provisions. 20 



tary compliance with the statute does 
not change the status. Bigalow Fruit 
Co. v. Armour Car Lines, 74 Ohio St. 
168, 78 N. E. 267, reversing 26 Ohio 
C. C. 496. 

18. Taliaferro v. Lane, 23 Ala. 369 
(holding that when an attachment 
debtor died before final judgment, the 
suit could not be revived against the 
foreign representative by a scire facias, 
as, although the debtor may have been 
a non-resident when the attachment 
was issued, it does not follow that he 
was so at the time of his death); 
Branch Bank v. McDonald, 22 Ala. 474; 
Lewis v. Reed, 11 Ind. 239. 

Under the laws of the District of Co- 
lumbia, foreign executors are not sub- 
ject to attachment for debts due from 
their testators. Jordan v. Laubrum, 
35 App. Cas. (D. C.) 89. 

Whether Against Heirs or Personal 
Representative. — Under a statute pro- 
viding that "in case of a debtor re- 
siding out of the state, the writ of at- 
tachment .... may issue agaiust 
his heirs, executors, or administrators," 
in determining whether it should issue 
against the heirs or against the per- 
sonal representatives, it was necessary 
to look to the nature and character of 
the action to be commenced, and to 
decide according to the answer to this 
question: were all the parties defend- 
ants in the state; against whom should 
the suit be brought for which the at- 
tachment is prosecuted? Lessee of 
Mitchell v. Eyster, 7 Ohio 257. 

19. U. S— Pringle V. Black, 2 Dall. 
97, 1 L. ed. 305; McCombe v. Dunch, 2 
Dall. 73, 1 L. ed. 294. La.— Debuys v. 
Yerbv, 1 Mart. (N. S.) 380. Pa.— Wil- 
liamson v. Beck, 8 Phila. 269; Kane v. 
Covle, 20 W. N. C. 317. 

In Courtney v. Pradt, 160 Fed. 561, 
37 C. C. A. 463, the court said that an 

VoL III 



attachment cannot be sued out against 
an executor or administrator in his 
representative character, unless he is 
made liable by statute, in the courts of 
any state other than that in which he 
has received his appointment, with the 
exception in Kentucky and in some 
other states, that a suit against a for- 
eign administrator or executor is per- 
mitted when he has removed to, and 
settled within, the state. 

20. See the cases generally through- 
out this division. 

Goods Not Capable of Being Returned 
in same Plight.— When no direction is 
given by statute, what goods might be 
the subject of attachment or distress, 
the question must be determined by 
the eommon law; and at common law 
goods could not be distrained which in 
consequence of the distress could not 
be returned in the same plight in which 
they were taken. Bond v. Ward, 7 
Mass. 123, 5 Am. Dec. 28. 

Everything of a tangible nature, ex- 
cepting such things as the humanity 
of the law preserves to a debtor, and 
mere choses in action, may be subjected 
to attachment. Handy V. Dobbin, 12 
Johns. (N. Y.) 220. 

A mere right of property, not ac- 
quiesced in by the party in possession, 
and consequently not liable to seizure 
by mesne or final process, is not sub- 
ject to attachment. Horton v. Smith, 
8 Ala. 73, 42 Am. Dec. 628. 

One in possession of goods as a tres- 
passer, who takes them into another 
state in order that they may be levied 
upon there, cannot in that way confer 
jurisdiction on the courts of the latter 
state, though he may have an honest 
and valid claim. Rosencranz v. Swof- 
ford Bros. Dry Goods Co., 175 Mo. 518, 
75 S. W. 445, '97 Am. St. Rep. 609. See 
also Timmons v. Garrison, 4 Humph. 



ATTACHMENT 



271 



B. As Dependent Upon Right To Levy Execution. — Where the 
attachment statute gives the right, in more or less general terms, to levy 
the writ or warrant upon the property of the defendant, it is generally 
held that the kind of property upon which an attachment may be 
levied is that which may be taken and sold on execution, 21 though under 
many attachment statutes, the levy of an attachment is not limited to 
such property as may be levied on under a general execution. 22 

C. Particular Kinds op Property. — 1. Exempt Property. — It 
may be said in a general way that property, which by the constitutions 
and statutes of the respective jurisdictions is exempt from levy and 
sale under execution, is as free from seizure under attachment, as it is 
from process which authorizes a sale, 23 as also property which, from its 
nature or situation, has been considered as exempt according to the 
principles of the common law. 24 



(Tenn.) 148, as to a slave decoyed from 
the state of his residence. 

A mere possibility is not attachable 
under a statute authorizing an attach- 
ment of the "estate or debts" of an- 
other. Young v. Young, 89 Va. 6715, 17 
S. E. 470, 23 L. E. A. 642, and note 
(denying the right to attach a con- 
tingent remainder). 

Church Pews. — See the title " Re- 
ligious Societies." 

Property of Bankrupt. — See the titles 
' ' Bankruptcy Proceedings " ; " Insol- 
vency." 

21. Property Subject to Execution 
Is Attachable. — Mass. — Heard v. Fair- 
banks, 5 Met. Ill, 38 Am. Dec. 394; 
Pierce v. Jackson, 6 Mass. 242. N. H. 
Eogers v. Elliott, 59 N. H. 201, 47 Am. 
Rep. 192; Spencer v. Blaisdell, 4 N. H. 
198, 17 Am. Dec. 412. Vt.— Lovejoy & 
Co. v. Lee, 35 Vt. 430. 

Where fixed machinery may be levied 
upon under an execution as personal 
property, such property may be at- 
tached. Moroy t\ Hoyt, 62 Conn. 542, 
26 Atl. 127, 19 L. R. A. 611. 

22. See, infra, next section. 

A better criterion, in determining 
whether property be liable to attach- 
ment, is to ascertain what would be the 
rights of the defendant in the attach- 
ment against the garnishee, than to 
enquire whether the property would be 
liable to execution against the defend- 
ant. Peace v. Jones, 7 N. C. 256. 

In Peaee v. Jones, supra, the court 
said that whether the property is 
liable to execution is not the criterion 
to determine whether it is attachable, 
as an atachment may operate on bonds, 



simple contract debts, as negotiable 
instruments, etc., under a statute au- 
thorizing attachment of estate and ef- 
fects. 

"Although an attachment is a spe- 
cial remedy at law, and, in the absence 
of statutory authority, does not reach 
property or interests which can only be 
realized by the assistance of a court 
of equity, the tendency of legislation 
in this country has been to enlarge the 
operation of the writ, and subject in- 
terests and kinds of property to seizure 
under an attachment which are not 
subject to execution at law." Ilankin- 
son v. Page, 31 Fed. 1S4, per Wallace, 
J., citing Drake, Attachment, §7. 

23. Exempt property is not attach- 
able. Hadley v. Bryars, 58 Ala. 139; 
Wallace v. Barker, 8 Vt. 440. 

An abandonment of the homcxt< <j</ 
subsequent to the levy would not give 
validity to a nullity, and would not 
create a lien where none before existed. 
Meyer v. Paxton, 4 Tex. Civ. App. 29, 
23 S. W. 284. 

Seamen's Wages. — See U. S. Rev. St. 
$4536, 6 Fed. Stats. Annot. 874, and 
the title "Seamen." 

Wages. — See Park v. Matthews, 36 
Pa. 28, 2 Grant Cas. 136, and the title 
" Garnishment. " 

Mechanic's Tools. — See Martindale c. 
Whitehead, 46 N. C. 64; Bell v. Doug- 
lass, 1 Yerg. (Tenn.) 397. 

A wooden boot hanging as a sign at 
the door of a shoemaker's shop, is not 
a tool or implement of trade. Wallace 
v. Barker, 8 Vt. 440. 

24. Cheshire Nat. Bank v. Jewett, 
119 Mass. 241. 

Vol. in 



272 



ATTACHMENT 



2. Real Property and Interests Therein. — a. In General. — Real 
estate is not attachable, 25 except under authority of a statute. 26 But 
the right to levy an attachment on real estate is recognized under the 
rule that when an execution and sale may be had upon real property, 
an attachment may be levied upon such property, 27 though the recogni- 
tion of the right to levy upon land in case of a foreign attachment does 
not give the right to levy a domestic attachment thereon. 28 

b. As Dependent on Amount of Personalty. — In the absence of any 
positive limitations in an attachment statute restraining an officer from 
levying upon real property, until he has first exhausted all the personal 
property, or failed after search to find any, an officer may serve a writ 
issued against the "estate of the defendants" upon real property with- 
out having first subjected personal property. 29 



25. Hawes' Appeal, 50 Conn. 317; 
Continental Nat. Bank v. Draper, 89 
Pa. 446; In re Miners' Bank, 13 W. N. 
C. (Pa.) 370. 

An attachment founded on a capias 
returned "not found," cannot be levied 
on land. Murray v. Hamilton, Hard. 
(Ky.) 5. 

26. Green V. Pyne, 1 Ala. 235; David- 
son's Lessee v. Beatty, 3 Har. & M. 
(Md.) 594; Campbell v. Morris, 3 Har. 
& M. (Md.) 535. 

Rents collected on attached lands 
were held to be subject to the lien in 
Young v. Hail, 6 Lea (Tenn.) 179. But 
see Columbia Bank v. Ingersoll, 21 Abb. 
N. C. 241, 1 N. Y. Supp. 54. 

Under an insolvent act providing 
that when a writ of attachment shall 
have been issued m in compliance with 
prescribed formalities, if the officer 
serving the same shall make a sworn 
return that he cannot find sufficient 
property to satisfy the attachment, the 
plaintiff may petition the court of pro- 
bate for the appointment of a trustee 
to take possession of the property of 
the defendant for the benefit of his 
creditors, the officer must attach real 
estate if he can find enough to satisfy 
the claim. Hawes' Appeal, 50 Conn. 
317. 

The right to redeem land sold at 
judicial sale is an attachable interest. 
Herndon r. Pickard, 5 Lea (Tenn.) 702. 

27. Fletcher v. Tuttle, 97 Me. 491, 
54 Atl. 1110, holding that property 
conveyed by a third person to a wife 
and paid for by the husband cannot 
be the subject of attachment when no 
statutory provision has been made 
therefor. 

Under the statute 5 Geo. II, ch. 7, 

Vol. III 



lands became liable to be taken and 
sold by fieri facias in the same manner 
as goods and chattels, and have since 
been held to be subject to attachment 
by all the tribunals of the state. Bar- 
ney v. Patterson, 6 Har. & J. (Md.) 182. 

28. Graighle v. Notnagle, Pet. C. C. 
245, 10 Fed. Cas. No. 5,679; Boyce V. 
Owens, 2 McCord L. (S. C.) 208, 13 Am. 
Dee. 711. 

Where a statute authorizes a domes- 
tic attachment to be levied only on 
such effects as are in their nature cap- 
able of being removed, or moveable 
property on the point of, or in danger 
of immediate assignment, such an at- 
tachment cannot be levied on land. 
Jamieson v. Brodrick, 1 Brev. (S. C.) 
396. 

29. Isham V. Downer, '8 Conn. 282; 
Boggess v. Gamble, 3 Coldw. (Tenn.) 
148. 

In some states statutes require per- 
sonal assets to be subjected, or a find- 
ing that there are none, before an in- 
terest in real estate can be attached. 
Davidson v. Simmons, 11 Bush (Ky.) 
330; Camden v. Haymond, 9 W. Va. 680. 
See also Humphrey v. Wood, Wright 
(Ohio) 566. 

Having attached personal property 
valued at more than double the debt 
claimed, a levy upon the real estate of 
the defendant is in violation of the 
positive prohibition of the statute. 
Tucker v. Byars, 46 Miss. 549. 

Affidavit Required Before Final Sale 
of Realty. — An order of the court sus- 
taining an attachment on real estate 
is valid notwithstanding the plaintiff 
has not filed a statutory affidavit that 
defendant had no personal estate sub- 
ject to the payment of the debt, as 



ATTACHMENT 



273 



c. Products of the Soil. — Trees and grass growing can be attached 
only when a statute authorizes such remedy, and then the interest 
should be attached as real estate, 30 but hay is recognized as attachable 
property. 31 

Annual crops are liable to attachment when they have become mature 
aud fitted for harvesting, 32 and it has even been held that an unripe an- 
nual growing crop is personal "property" within the meaning of an 
attachment statute. 33 

3. Personal Property. — a. In General. — By statute in many juris- 
dictions personal property, whether owned by corporate bodies, 34 or 
individuals, 36 has been made subject to attachment. 

b. Fixtures. — Fixtures cannot be levied on as personal property," 



such affidavit is required only before 
the final judgment or order of sale of 
the realty of a non-resident. Lee V. 
Smyser, 96 Ky. 369, 29 S. W. 27. See 
also Freund V. Ireland (Ky.), 33 S. W. 
89. 

30. Phillips v. Pearson, 55 Me. 570. 
In Norris v. Watson, 22 N. H. 364, 55 

Am. Dec. 160, holding that a growing 
trop of grass is not liable to attach- 
ment, the court said that statutes which 
authorize the mortgage of growing 
rops as personal property, and m^. 
.ctachment of personal property But, 
ect to mortgage, are not intended v^ 
iiake any change in the law relating to 
the attachment of growing crops. 

Grass, though ripe and fit for harvest, 
is not subject to attachment, when it 
is not specified by the statute as prop- 
erty that may be so taken, and caunot 
be taken on execution at common law. 
Rogers V. Elliott, 59 N. H. 20L, 47 Am. 
Rep. 192, wherein the court said: "Em- 
blements were regarded as personal 
property, but that term does not in- 
clude fruits which grow on trees which 
are not planted yearly, grass, and the 
like. It only includes those crops 
which grow yearly, and are raised an- 
nually by expense and labor, or great 
manurance or industry. The fruits 
and products of the earth, other than 
emblements, while they are hanging 
by the roots, are a part of the realty. 
As soon as they are gathered, they are 
personal estate." 

31. Campbell v. Johnson, 11 Mass. 
184; Barrett v. White, 3 N. H. 210, 14 
Am. Dec. 352. 

Where a tenant had been in posses- 
sion for some time under a conditional 
contract of purchase, hay which had not 



been appropriated to the use of the 
landlord to reduce the amount agreed 
to be paid for the farm, may be at- 
tached as the property of the tenant. 
Garland v. Hilborn, 23 Me. 442. 

32. Polley V. Johnson, 52 Kan. 478, 
35 Pac. 8, 23 L. R. A. 258; Sawyer v. 
Twiss, 26 N. H. 345. 

Corn or Other Growing Products of 
the Soil. — Cheshire Nat. Bank v. Jewett, 
119 Mass. 241; Heard v. Fairbanks, 5 
Met. (Mass.) Ill, 38 Am. Dec. 394. 

Tobacco stored in barns, hanging on 
poles, in process of curing, and in such 
condition that it could not be moved 
without great damage, may be attached 
under a statute which authorizes a re- 
turn to the town clerk's office when an 
attachment is made of personal prop- 
erty, which by reason of its bulk or 
other cause, cannot be immediately 
moved. Cheshire Nat. Bank V. Jewett, 
119 Mass. 241, wherein the court said: 
"The objection that the duties re- 
quired to secure the crop are such as 
do not properly belong to the attach- 
ing officer, applies equally to all crops 
which require harvesting." 

In Kentucky, the remedy in equity, 
provided for by statute on a return 
of "no property," may be pursued to 
subject a growing crop. Farmers 'Bank 
v. Morris, 79 Ky. 157. 

33. Raventas v. Green, 57 Cal. 254. 

34. Wall v. Norfolk, etc., R. Co., 52 
W. Va. 4S5. 44 S. E. 294, 94 Am. St. 
Rep. 948, 64 L. R. A. 501; Com. v. 
Pry, 4 W. Va. 721. 

35. Eea r. Missouri, 17 Wall. (U. S.) 
532, 21 L. ed. 707. 

36. Mayhew v. Hathaway, 5 R. I. 
2S3. 

Fixtures in Sawmill. — An attach- 

voi. in 



274 



ATTACHMENT 



and where a creditor may attach removable fixtures as such, he must 
remove them from the premises while the tenant's right to remove them 
exists. 37 

c. Shares of Stock in Incorporated Companies. — While corporate 
stock is not subject to attachment at common law, 38 it has been made 
so by statute in most jurisdictions. 39 But it is generally held to be the 



■ ment of all the debtor's real estate in 
a certain town including "the saw 
mill," creates a lien on a circular saw 
mill which was in and constituted a 
part of the sawmill building. New- 
hall v. Kinney, 56 Vt. 591. 

Manure made upon a farm, in the 
ordinary course of husbandry, is a part 
of the real estate, and cannot be at- 
tached separately from the land. Saw- 
yer v. Twiss, 26 N. H. 345. 

37. Morey v. Hoyt, 62 Conn. 542, 26 
Atl. 127, 19 L. R. A. 611. 

38. XJ. S. — Deacon v. Oliver, 14 How. 
610, 14 L. ed. 563, involving a Mary- 
land statute. -Del. — Fowler v. Dickson, 
74 Atl. 601. Mich.— VanNorman v. 
Jackson Circuit Judge, 45 Mich. 204, 
7 N. W. 796. Mo.— Armour Bros. Bkg. 
Co. .v. St. Louis Nat. Bank, 113 Mo. 12, 
20 S. W. 690, 35 Am. St. Rep. 691; Fos- 
ter v. Potter, 37 Mo. 525. Tenn.— 
Moore v. Gennett, 2 Tenn. Ch. 375. 
Tex. — Merchants' Mut. Ins. Co. v. 
Brower, 38 Tex. 230. W. Va — Lips- 
comb's Admr. v. Condon, 56 W. Va. 416, 
49 S. E. 392, 107 Am. St. Rep. 938, 67 
L. R. A. 670. 

"The Estate Both Real and Per- 
sonal." — Though shares of stock in a 
corporation are denned to be personal 
property, a statute authorizing attach- 
ments to issue upon "the estate, both 
real and personal," does not authorize 
attachment of corporate stock when 
contemporary legislation shows that it 
was not intended to be included. Haley 
V. Reid, 16 Ga. 437. 

"Debt or Any Property or Effects." 
Shares of stock in an incorporated 
company are not attachable as a 
"debt" or any "property or effects" 
of the debtor. Evans v. Mocnot, 57 N. 
C. 227. 

Not Attachable in the District of 
Columbia. — Duncanson v. National Bank 
of Republic, 7 Mackey 348; Barnard v. 
Life Ins. Co., 4 Mackey 63. 

39. Pease v. Chicago Crayon Co., 
235 111. 391, 85 N. E. 619, 18 L. R. A. 
(N. S.) 1158, 14 Ann. Cas. 263. affirming 
judgment, 138 HI. App. 513; Union 

vol m 



Nat. Bank V. Byram, 131 111. 92, 22 N. 
E. 842. Mo.— Tufts v. Volkening, 122 
Mo. 631, 27 S. W. 522 affirming 51 Mo. 
App. 7. R. I. — Beckwith v. Burrough, 
13 R. I. 294. Va.— Shenandoah Val. 
R. Co. v. Griffith, 76 Va. 913; Chesa- 
peake, etc., R. Co. v. Paine, 29 Gratt. 
502. W. Va.— Lipscomb v. Condon, 56 
W. Va. 416, 49 S. E. 392, 67 L. R. A. 
670. 

Shares of Stock Assigned to Defraud 
Creditors.— "The statute in Michigan 
has made no provision for seizing un- 
der an attachment against one a share 
belonging prima facie to another, as an 
expedient to enable the attaching credi- 
tor to contest the title of the apparent 
owner." Van Norman v. Jackson Cir- 
cuit Judge, 45 Mich. 204, 7 N. W. 796. 

The words "rights and credits" in 
a general attachment law include shares 
of stock. Curtis v. Steever, 36 N. J. L. 
304. See also Castle v. Carr, 16 N. J. L. 
394. 

"Rights" and "effects" of the 
debtor cover shares of stock. Union 
Nat. Bank v. Byram, 131 111. 92, 22 N. 
E. 842; Thompson v. Wells, 57 111. App. 
436. To the contrary, see Rhea V. 
Powell, 24 111. App. 77, 

"Personal Property, Choses in Ac- 
tion, and Other Securities." — If a 
statute makes shares of stock personal 
property, and authorizes an attach- 
ment upon "the personal property, 
choses in action, and other securities," 
an attachment may be levied upon cor- 
porate stock. Lipscomb's Admr. v. 
Condon, 56 W. Va. 416, 49 S. E. 392, 
107 Am. St. Rep. 938. 

Rule in Massachusetts. — But an at- 
tachment of shares of stock is not au- 
thorized in Massachusetts by Rev. 
Laws, c. 167, §§69, 70, because those 
sections only apply w4iere there is an 
attachment of goods by actual seizure 
of them. Athol Sav. Bank v. Bennett, 
203 Mass. 480, 89 N. E. 632. 

Under an Equitable Attachment 
Statute. — Stock held by defendant (non- 
resident) in a corporation is to be re- 
garded as a chose in action, and con- 



ATTACHMENT 



275 



legal and not the equitable interest therein which is attachable. 40 
When Shares Assigned. — If an assignment of stock has not been en- 
tered on the corporate records, the stock may be attached as the prop- 
erty of the assignor. 41 

Dividends declared after the levy are covered by a valid attachment 
of stock. 42 

In Foreign Corporations. — The general rule is that statutes authorizing 
the attachment of shares of stock in a corporation do not apply to for- 
eign corporations, 43 especially if the owner of the stock is also a non- 



stitutes a portion of the equitable es- 
tate of its owner, and as such may be 
charged in equity under the ordinary 
powers of that court, and is expressly 
chargeable by attachment under an at- 
tachment statute. St. Mary's Bank V. 
St. John, 25 Ala. 566. 

Bank Stock. — A statute providing 
for the attachment of shares in incor- 
porated companies, applies to a bank 
in the absence of any provision regard- 
ing the matter in the statute incorpor- 
ating the bank. Hussey v. Manufac- 
turers', etc. Bank, 10 Pick. (Mass.) 415. 
Though Certificate Not Within the 
State. — Whether a share of stock be 
treated as a "chose in action" or as 
some other kind of a "right," it is 
capable of being attached though the 
certificate of stock is outside the state. 
Cord v. Newlin, 71 N. J. L. 438, 59 Atl. 
22. 

40. Gypsum Plaster, etc. Co. v. Kent 
Circuit Judge, 97 Mich. 631, 57 N. W. 
191; Beckwith v. Burrough, 13 R. I. 
294. 

Under a statute declaring that "in 
attaching shares of stock, or" the in- 
terest of a stockholder in any corpora- 
tion organized under the laws of this 
state, the levy shall be made in the 
manner provided by law for the seizure 
of such property on execution," the 
law confines the right to levy execu- 
tions to cases where the debtor's status 
is that of stockholder and legal pos- 
sessor of the interest. In case his 
right is merely equitable, or in case he 
has regularly passed to another the 
legal title so that, as against him, the 
transfer is good and is one the com- 
pany is bound to recognize, the shares 
are not leviable on attachment or exe- 
cution issued against his property. Van 
Norman v. Jackson Circuit Judge, 45 
Mich. 204, 7 N. W. 796. 

'A statute providing that "the rights 



or shares which the defendant has in 
stock of an association or corpora- 
tion . . . may be levied upon," 
applies only to the legal title. Weller 
v. J. B. Pace Tobacco Co., 2 N. Y. Supp. 
292. 

On the contrary, in Middletown Sav. 
Bank v. Jarvis, 33 Conn. 372, it was 
held that an attachment might be 
levied at law upon an equitable in- 

41. Fiske v. Carr, 20 Me. 301; Lip- 
pitt v. American Wood Paper Co., 15 
R. I. 141, 23 Atl. Ill, 2 Am. St. Rep. 
886. See also Fisher v. Essex Bank, 5 
Gray (Mass.) 373. But in DeConeau 
v. Guild Farm Oil Co., 3 Daly (N. 
Y.) 218, it was held that notwith- 
standing a provision in a corporate 
charter, that the stock shall be 
transferable only on the books of 
the company on the surrender of the 
certificate, an assignment of stock, at- 
tended by a delivery of the certificate, 
is valid as between the parties to it, 
and vests in the vendee an equitable 
title, and the assignor has not an at- 
tachable interest. 

42. Jacobus v. Monongahela Nat. 
Bank, 35 Fed. 395. 

43. Conn. — Winslow v. Fletcher, 53 
Conn. 390, 4 Atl. 250, 55 Am. Rep. 122. 
111.— Reid Ice Cream Co. r. Stephens. 62 
111. App. 334. Tenn. — Moore v. Gen- 
nett, 2 Tenn. Ch. 375. See the title 
"Garnishment." 

In Plimpton V. Bigelow. 93 N. Y. 592, 
affirming 63 How. Pr. 484, the court 
said: "The general principle that at- 
tachment proceedings can be effectual 
Only against property within the juris- 
diction is clearly recognized in the 
provisions of the code regulating pro- 
ceedings by attachment. They au- 
thorize the attachment of debts, choses 
in action, rights by contract, and by 
section 647, shares of the defendant in 

vol. in 



276 



ATTACHMENT 



resident, 44 though some cases hold that an attachment may be levied 
upon shares of stock in such corporations. 45 



a corporation, subject, however, to the 
limitation that the property attached 
must be within the jurisdiction." 

A Question Certified. — " 'Whether, 
where the certificates of stock of a for- 
eign corporation belonging to a non- 
resident of the state are in possession 
of a resident of this state, as pledgee, 
the interest of the owner and pledgor 
can be levied upon under a warrant of 
attachment against such owner, made 
by service of a notice on the pledgee 
in the manner prescribed by subdivision 
3 of section 649 of the code,' " was 
answered in the affirmative. Simpson 
v. Jersey City Contracting Co., 165 N. 
Y. 193, 58 N. E. 896, 55 L. E. A. 796, 
affirming 47 App. Div. 17, 61 N. Y. 
Supp. 1033, in which case the court, 
distinguishing the case of Plimpton v. 
Bigelow, 93 N. Y. 592, cited in the 
previous notes; said that in that case the 
plaintiff and the defendant were both 
non-residents of the state, and that it 
was attempted to attach shares of 
stock of a foreign corporation, which 
were owned by the non-resident de- 
fendant and the certificates of which 
were in his possession at his domicile. 

Defendant's Interest May be Sold at 
Judicial Sale Under Order of Court. — 
Simpson v. Jersey City Contr. Co., 165 
N. Y. 193, 58 N. E. 896, 55 L. E. A. 
796, affirming 47 App. Div. 17, 61 N. Y. 
Supp. 1033. 

Eight To Levy on Certificate. — Caf- 
fery v. Choctaw Coal, etc. Co., 95 Mo. 
App. 174, 68 S. W. 1049. 

Rule in Massachusetts. — There is no 
provision in the Massachusetts statutes 
that shares of stock in a foreign cor- 
poration can be reached by attach- 
ment, except in the case of a corpora- 
tion organized under the la^ s of the 
United States. Pinney v. Nevills, 86 
Fed. 97. 

Shares in National Bank. — A state 
statute providing for the attachment 
of shares of stock in corporations or- 
ganized under the laws of the state, 
does not authorize the attachment of 
shares of stock in a national bank. 
Sowles v. National Union Bank, 82 Fed. 
696, where it was further said that 
"the laws of the United States pro- 
vide for the transfer of shares in na- 
tional banks, and what the effect of 
the transfer shall be, and this might 

Vol. Ill 



exclude any effect of transfer proceed- 
ings by attachment under state laws." 

In Hagar v. Union Nat. Bank, 63 Me. 
509, it was held that a national bank 
could attach the shares of stock of a 
stockholder in an action on an overdue 
note of the stockholder, discounted by 
the bank. 

Stock in the Bank of the United 
States. — United States v. Vaughan, 3 
Binn. (Pa.) 394, 5 Am. Dec. 375. 

44. U. S— Pinney V. Nevills, 86 
Fed. 97, under Massachusetts statutes. 
Ky.— New Jersey, etc. Co. v. Traders' 
Deposit Bank, 104 Ky. 90, 46 S. W. 677, 
notwithstanding that the corporation 
is carrying on business through officers 
in the state. Pa. — Christmas v. Biddle, 
13 Pa. 223. 

A statute which authorizes "the at- 
tachment of the shares of the defend- 
ant in any corporation," is to be con- 
strued in view of the fundamental prin- 
ciple that the res must be actually oi 
constructively within the jurisdiction of 
the court issuing the attachment in 
order to any valid or effectual seizure. 
Ireland v. Globe Milling, etc., Co., 19 
E. I. 180, 32 Atl. 921, 61 Am. St. Eep. 
756, 29 L. E. A. 429, holding that, 
shares of stock owned by a non-resi- 
dent defendant in a foreign corpora- 
tion cannot be reached by process of 
attachment, although the officers of the 
corporation are within the state and 
the business of the corporation is be- 
ing carried on herein. 

Stock Pledged. — Shares of a foreign 
railroad company which have been 
pledged cannot be reached by attach- 
ment. Tweedy v. Bogart, 56 Conn. 419, 
15 Atl. 374, citing Winslow v. Fletcher, 
53 Conn. 396. 

45. In Young v. South Tredegar 
Iron Co., 85 Tenn. 189, 2 S. W. 202, 4 
Am. St. Rep. 752, it was held that un- 
der the statute a foreign corporation 
acquires the standing of a domestic 
corporation by complying with the re- 
quirements made a prerequisite to its 
doing business in Tennessee, and tnat 
its stock is then subject to attachment 
in the latter state, though the owner 
be a- non-resident and the certificates 
are in his possession. The court relied 
upon Eailroad v. Harris, 12 "Wall. (U. 
S.) 65, 82, 20 L. ed. 354; Plimpton V. 
Bigelow, TS3 N. Y. 592. 



ATTACHMENT 



277 



d. Money and Bank Notes. — Money, if in the possession of the de- 
fendant, or capable of being identified as his property, may be taken 
under an attachment, whether in the form of specie or of bank notes.*' 

e. Property in Process of Manufacture. — Under the rule that prop- 
erty cannot be attached when it cannot be returned to the owner in its 
original state, it has been held that goods in the process of production 
or manufacture cannot be attached,* 7 though the rule only means that 
the officer is not bound to attach and risk the loss when the property 
would be entirely valueless and be destroyed by having the process of 
manufacture stopped. 48 

The officer is not bound to attach and carry forward the process of 
manufacture. Nor can he leave the goods in the debtor's possession or 



So an attachment of such stock is 
authorized under a statute allowing the 
"shares of stock in any" corporation 
to be attached. Smith V. Pilot Min. 
Co., 47 Mo. App. 409. 

46. Mass. — Wildes v. Nahant Bank, 
20 Pick. 352; Knowlton v. Bartlett, 1 
Pick. 271. Miss. — Philadelphia Invest. 
Co. v. Bowling, 72 Miss. 565, 17 So. 231. 
N. H.— Spencer V. Blaisdell, 4 N. H. 
198, 17 Am. Dee. 412. N. J.— Crane V. j 
Freese, 16 N. J. L. 305. N. Y.— Handy 
v. Dobbin, 12 Johns. 220. Vt.— Love- 
joy v. Lee, 35 Vt. 430. 

Treasury notes of the United States. 
State v. Lawson, 7 Ark. 391, 46 Am. 
Dec. 293. 

If the officer can find the money and 
take it without committing a trespass. 
Maxwell V. McGee, 12 Cush. (Mass.) 
137. 

Money in Bank. — Negotiable Certifi- 
cates of Deposit. — If a bank has issued 
to the depositor negotiable certificates 
of deposit, it has nothing in its pos- 
session belonging to the depositor upon 
which an atfachment can operate. 
McMillan v. Richards, 9 Cal. 365, 70 
Am. Dee. 655. 

Money paid in purchase of a draft 
no longer belongs to the purchaser and 
cannot be attached for his debt while 
the draft is outstanding and there has 
been no default upon it. Capital City 
Bank v. Parent, 134 N. Y. 527, 31 N. E. 
976, 18 L. R. A. 240. 

Money Collected by Another for 
Debtor. — Specific, pieces of gold and 
silver coin, collected by an attorney 
on a claim for a client, cannot be at- 
tached in the hands of the attorney as 
the property of the client, as the client 
has merely a chose in action, and no 



property in the money until paid over. 
Maxwell v. McGee, 13 Cush. (Mass.) 
137. 

So as to Money in the Possession of 
an Auctioneer. — Meagher v. Campbell, 
12 Misc. 426, 33 N. Y. Supp. 700, 
affirming 11 Misc. 114, 31 N. Y. Supp. 
998. 

47. Bond v. Ward, 7 Mass. 123, 5 
Am. Dec. 28, hides in a vat for tanning. 

From Material Supplied by Another. 
When a carpenter undertook to make 
a desk for another out of certain lum- 
ber received from such person, and to 
furnish the other materials himself and 
take payment out of the surplus boards, 
it could not be properly attached by 
another after the carpenter had in- 
serted materials found by himself, as 
the property and right to immediate 
possession were in the person who sup- 
plied the lumber. Stevens v. Briggs, 
5 Pick (Mass.) 177. 

48. Hale V. Huntley, 21 Vt. 147, 
holding that when part, of the charcoal 
in charcoal pits was entirely finished, 
and the residue had so far progressed 
as to have been entirely burned to 
coal, though some labor and skill were 
still necessary in order to separate and 
preserve it properly, it might be at- 
tached. 

Where charcoal pits were only about 
half burned, and entirely incapable of 
removal by the officer, and in such con- 
dition as to require constant and active 
care and attention of some person 
skilled in the business, for several days, 
in order to render the property of any 
value, the officer is not compelled to 
attach it. Wilds v. Blanchard, 7 Vt. 
138. 

vol m 



278 



ATTACHMENT 



in the possession of a third person and require him, against his con- 
sent, to put upon them his labor, time and experience. 49 

f . Intermingled Goods. — An attachment may be levied on the goods 
of a debtor notwithstanding they are intermingled with the goods of 
another so as not to be distinguishable, and the whole may be taken 
and held until such other. person identifies his goods and demands a 
re-delivery, 50 but the whole of the goods cannot be taken, notwithstand- 
ing the goods of the other person are so intermingled with the goods of 
the debtor that the officer cannot distinguish them, if the owner is 
present and offers to select them. 51 If the goods belonging to each are 
easily and plainly distinguishable, the officer can levy only upon the 
goods of the attachment defendant, 52 and where they are of such a 
character that they may be identified and separated, it is the duty of 
the officer to make reasonable inquiry to distinguish them before he is 
justified in taking those of the other. 63 

g. Perishable Goods. — Because the goods are perishable is no 



49. Herman Goepper & Co. v. 
Phoenix Brew. Co., 115 Ky. 708, 74 S. 
W. 726, citing' Hill v. Harris, 10 B. Mon. 
(Ky.) 120, 1 Am. Rep. 542, a case in- 
volving beer in the tubs. 

50. Wilson v. Lane, 33 N. H. 466; 
Lewis v. Whittemore, 5 N. H. 364, 22 
Am. Dec. 466. 

In order to justify an attachment of 
other property than that of the debtor, 
it is incumbent upon the sheriff to 
show that the goods were intermixed 
with those of the debtor in such man- 
ner that they could not, upon due in- 
quiry, have been distinguished by the 
officer who made the attachment, or 
that the aid of the person claiming such 
property was required for that pur- 
pose. Walcott v. Keith, 22 N. H. 196. 

Part of Mass of Property Sold and 
Not Delivered. — When property has been 
sold consisting of a part only of a 
larger mass, not delivered, not specially 
designated, and of which there is noth- 
ing to identify any particular part, no 
property passed, and an attachment 
may be levied upon the whole as the 
property of vendor. Merrill v. Hunne- 
well, 13 Pick (Mass.) 213. 

Existence of Fraudulent' Purpose. — 
In Taylor v. Jones, 42 N. H. 25, the 
court said that it is wholly immaterial 
whether there was any improper agree- 
ment or fraudulent contrivance be- 
tween the debtor and the person with 
whose goods those of the debtor had 
become intermingled, if this had been 
brought about by the fault of such 
person. 

VoL III 



In Parker v. Williams, 77 Me. 418, 
1 Atl. 138, following Spafford v. True, 
33 Me. 283, 33 Am. Dec. 621, it was 
held that not only where the property 
has been intermingled with the goods 
of another, carelessly or fraudulently, 
but also when it has been done de- 
signedly without the consent of the 
owner, it is the duty of the officer to 
attach the whole. 

But in Capron v. Porter, 43 Conn. 
383, it was held that unless goods have 
been intermingled fraudulently, with 
the purpose of frustrating an attach- 
ment on the part owned by the debtor, 
the goods of the other owner cannot be 
levied on though the goods may be in- 
separable by the creditor or officer. 

51. Yates v. Wormell, 60 Me. 495. 
It is the business of the owner, who 

has allowed them to be so confused, to 
separate his own from the debtor's. 
Shumway v. Rutter, 8 Pick. (Mass.) 
443, 19 Am. Dec. 340. To the same 
effect, see Susskind v. Hall (Cal.), 44 
Pac. 328. 

52. Susskind v. Hall (Cal.), 44 Pac. 
328. 

53. Moore v. Bowman, 47 N. H. 494. 
If two separate owners mingle their 

goods together, it is the duty of an 
officer who wishes to make an attach- 
ment upon a writ against one of them 
to ascertain, if he can, what portion 
of the goods belongs to each; and not 
to attach the whole of them without 
making the enquiry. Carlton V. Davis, 
8 Allen (Mass.) 94. 



ATTACHMENT 



279 



ground for exempting them from attachment. 64 But the rule in Massa- 
chusetts seems to be otherwise. 55 

4. Liens. — A personal or common law lien is not an attachable in- 
terest. 56 

5. Intoxicating Liquors and Licenses. — It has been held that where 
a statute prohibits the sale of intoxicating liquors except by designated 
persons, and makes no exception as to sales by officers under judicial 
process, such property is not liable to attachment, when held law- 
fully, 57 but in other states, even when illegally kept for sale, the goods 
do not lose the character of property and are subject to attachment." 

The right to attach liquor licenses given by statute, has reference both 
to the certificate and to the privilege which it evidences. 59 

6. Public Conveyances. — in General. — By statute iD many jurisdic- 
tions the rolling stock and other movable property of a railroad, 80 such 
as railroad cars and engines may be attached, 61 as may also stage 
coaches. 62 

Vessels. — If a ship or vessel may be considered as within the statutes 
authorizing attachments on property, a writ of attachment may be 
levied upon a ship or other vessel as well as upon any other kind of 
property in a suit against the master and the owners as the debtors of 
the plaintiff. 03 



54. Batch elder v. Frank, 49 Vt. 92; 
Chilley v. Jenness, 2 N. H. 87 (holding 
potatoes to be subject to attachment), 
and disapproving 6 Mass. 143. 

In Chilley v. Jenness, supra, the court 
said that at common law they were 
probably not subject to attachment. 

55. Crocker v. Baker, 18 Pick. 
(Mass.) 407, citing Bond v. Ward, 7 
Mass. 123. 

56. Kittredge v. Sumner, 11 Pick. 
(Mass.) 50, as to the lien of a pledgee. 
See also supra, VI, C, 3. 

A mechanic's or manufacturer's lien 
is personal to himself, and is not at- 
tachable by his creditors as personal 
property, or a chose in action. Lovett 
V. Brown, 40 N. H. 511. 

57. Me. — Nichols v. Valentine, 36 
Me. 322. Mass. — Kiff v. Old Colony, 
etc. R. Co., 117 Mass. 591, 19 Am. Rep. 
429; Ingalls v. Baker, 13 Allen 449. 
R. I.— Barron v. Arnold, 16 R. I. 22, 11 
Atl. 298. S. C. — Lanahan v. Bailey, 
53 S. C. 489, 31 S. E. 332, 69 Am. St. 
Rep. 884, 42 L. R. A. 297. 

58. la. — Monty v. Arneson, 25 Iowa 
383. N. H .— Tucker V. Adams, 63 N. H. 
361. Vt.— Howe v. Stewart, 40 Vt. 146. 
Compare Nutt v. Wheeler, 30 Vt. 436, 
73 Am. Dec. 316. 



59. Quinnipiac Brewing Co. v. Hack- 
barth, 74 Conn. 392, 50 Atl. 1023. 

60. Wall v. Norfolk, etc. R. Co., 52 
W. Va. 485, 44 S. E. 294, 94 Am. St. 
Rep. 948, 64 L. R. A. 501. 

61. Hall v. Carney, 140 Mass. 131, 
3 N. E. 14; Boston, etc. R. Co. v. Gil- 
more, 37 N. H. 410, 72 Am. Dec. 336. 

The attachment of freight cars not 
in actual use, is not forbidden by the 
interstate commerce act. DeRoche- 
iii (nit v. New York Cent. R. Co. (N. H.), 
71 Atl. 868. 

62. Potter v. Hall, 3 Pick. (Mass.) 
368, 15 Am. Dec. 226, in which it was 
held that an attachment could properly 
be levied upon a stagecoach about the 
time fixed for its departure, when part 
of the horses were fastened to it and 
the passengers were engaged and ready 
to take their seats, though such a con- 
veyance might not be stopped and at- 
tached on mesne process when actually 
traveling. 

63. La. — Haberle v. Barringer, 29 
La. Ann. 410; Sibley V. Fernie, 22 La. 
Ann. 163; Nimick V. Louisiana Tehuan- 
tepec. Co., 16 La. Ann. 46. Mont.— 
Dietrich V. Martin, 24 Mont. 145. 60 
Pae. 1087, 81 Am. St. Rep. 419. W. Va. 
Com. v. Fry, 4 W. Va. 721. 

VoL in 



280 



ATTACHMENT 



7. Property In Custodia Legis. — a. In General. — The general rule 
is well established that property in the possession of the court, 84 or of 
an officer of the court, 65 or property held by a public officer, 68 or by a 



A boat, cabU and anchor appurtenant 
to a vessel may be attached while the 
vessel is at a wharf, as auch articles 
are not then in use and necessary to 
the safety of the vessel. Briggs V. 
Strange, 17 Mass. 405. 

Coal boats, intended for one voyage 
only and broken up and sold for lumber 
at the place of destination, are not 
such ships and vessels as are within the 
meaning and intention of the statute 
relating to the attachment of vessels. 
Parkinson v. Manny, 2 Grant Gas. (Pa.) 
521. 

A dredge boat is not within the 
operation of a statute authorizing an 
attachment against "boats and vessels 
of all descriptions, built, repaired or 
equipped, or running upon any of the 
navigable waters within the jurisdic- 
tion of the state." Knisely v. Parker, 
34 111. 481. 

A steam dredge and amalgamator 
used for mining purposes though called 
a "boat" is but a piece of mining ma- 
chinery. Dietrich v. Martin, 24 Mont. 
145, 60 Pac. 1087, 81 Am. St. Rep. 419. 

Attachment as Against Libel. — An at- 
tachment of a vessel at common law 
against the agents for supplies, which 
is not a proceeding in rem, cannot pre- 
vail against a libel brought by the 
owners of the vessel. The Taranto, 1 
Sprague 170, 23 Fed. Cas. No. 13,751. 

64. Murrell v. Johnson, 3 Hill (S. C.) 
12, money arising from a partition 
sale. 

Where the entire proceeds of a sale 
have been paid into court under an or- 
der to that effect, and deposited in 
bank to the credit of the cause before 
an attachment is laid in the hands of 
the trustee, the funds are not liable to 
the process. Mattingly v. Grimes, 48 
Md. 102. 

Money paid into court upon a bill 
praying redemption cannot be at- 
tached. Withers V. Pemberton, 3 Coldw. 
(Tenn.) 56. 

Money deposited in lieu of bail is a 
fund in court within the meaning of 
Ky. Civ. Code, §207, which pro- 
vides how an attachment may be levied 
on such a fund. Landy v. Moritz, 33 
Ky. L. Rep. 223, 109 S. W. 897. 

Funds Deposited Without Order of 

VoL III 



Court. — The deposit of funds by an 
officer with the clerk of the court, not 
made by the authority of the court, is 
not within the rule protecting property 
in custodia legis from a levy. Lemly 
v. Ellis, 143 N. C. 200, 55 S. E. 629. 

65. Money in the hands of a trustee 
of the court cannot be reached by pro- 
cess of attachment. Bentley v. Shrieve, 
4 Md. Ch. 412. 

Money in the hands of the clerk, de- 
posited pending a suit for damages and 
a claim of set-off, there being no judg- 
ment, may be attached at the instance 
of a creditor. Trotter V. Lehigh Zinc 
Co., 41 N. J. Eq. 229, 3 Atl. 95 (rely- 
ing upon Conover v. Ruckman, 33 N. J. 
Eq. 303), affirmed in 42 N. J. Eq. 456, 
11 Atl. 25. 

Possession Pending Appointment of 
Receiver. — Possession by a sheriff, 
merely for preservation of the property 
until the statutory time necessary be- 
fore the appointment of a receiver 
should elapse, in an action between 
partners for a dissolution, without ref- 
erence to the rights of creditors, is not 
such a possession in custodia legis as 
will prevent attachment. Ackerman v. 
Ackerman, 50 Neb. 54, 69 N. W. 388. 
See the title "Receivers." 

Pending an Appeal. — When property 
has been taken into the custody of a 
master of the court by an order, it can- 
not be taken on a writ of attachment 
pending an appeal from a judgment ad- 
judging the right of property therein. 
McKenzie v. Noble, 13 Rich. L. (S. C.) 
147. 

Personal property of an insane per- 
son in the hands of his guardian, who 
had returned to the probate court an 
inventory thereof, is not subject to at- 
tachment in an action against the in- 
sane person. Hale V. Duncan, Brayt. 
(Tt.) 132. 

66. In re Shelly (Del.), 73 Atl. 796; 
Morris v. Penniman, 14 Cray (Mass.) 
220, 74 Am. Dec. 675. 

Under Ala. Code 1886, No. 2950, pro- 
viding that money in the hands of the 
sheriff or other officer may be attached, 
money which is connected with an of- 
fense charged against the defendant, 
or which may be used as evidence 
against him on the prosecution may be 



ATTACHMENT 



281 



person serving in a fiduciary capacity, 87 cannot be attached, as it is 
then said to be in custodia legis, and is protected for reasons of public 
policy. 88 And it is immaterial how the property was brought under the 
control of the court, whether by attachment or by some other equivalent 
and lawful act. 69 Nor is property which has been unlawfully seized 
subject to attachment. 70 But a fuller treatment of this aspect of the 
subject will be found in another part of this work. 71 It is held that 
money deposited in lieu of a bond or undertaking in a judicial proceed- 
ing may be attached. 72 



removed by the officer and retained by 
him, and during the time it is in the 
hands of the officer or in possession of 
the court, it is subject to attachment. 
Ex parte Hum, 92 Ala. 102, 9 So. 515, 
25 Am. St. Rep. 23, 13 L. R. A. 120. See 
also Warren V. Matthews, 96 Ala. 183, 
11 So. 285, holding under the above 
statute, that when money taken from 
a person arrested upon a criminal 
charge has been attached in the hands 
of the sheriff and by him paid into 
court, as directed by the statute, it 
may again be attached in the hands of 
the clerk. 

At common law the property in the 
hands of an officer is regarded as in 
gremio legis, and not subject to pro- 
cess; but by statute, it is subject to 
legal process. Ex parte Hum, 92 Ala. 
102, 9 So. 515, 25 Am. St. Rep. 23, 13 
L. R. A. 120. 

Property in the custody of a United 
States officer on which the United 
States has a lien for duties (Harris v. 
Dennie, 3 Pet. (U. S.) 292, 7 L. ed. 683, 
reversing 5 Pick. (Mass.) 120; Dennie 
c. Harris, 9 Pick. (Mass.) 364; but 
compare Beech v. Abbott, 6 Vt. 586), 
or storage (Peabody v. McGuire, 79 Me. 
572, 12 Atl. 630) cannot be attached 
by a state officer without an act of 
congress authorizing it (United States 
c. Murdock, 18 La. Ann. 305, 89 Am. 
Dec. 651). 

This rule is established solely in the 
interest of the United States, to pre- 
serve their rights upon such property, 
and does not apply where the govern- 
ment is itself the attaching creditor. 
United States v. Murdock, 18 La. Ann. 
305, 89 Am. Dec 651. 

67. Property Held by Executors or 
Administrators. — Property in the cus- 
tody of executors, administrators and 
other fiduciaries is in custodia legis. 
Brewer v. Hutton, 45 W. Va. 106, 30 
8. E. 81, 72 Am. St. Rep. 804. 

"The rule, however, is limited in its 



duration to the period of the fiduciary 
relation." In re Shelly (Del.), 73 AtL 
796. 

68. See Lemly v. Ellis, 143 N. C. 
200, 55 S. E. 629. 

69. Lemly v. Ellis, 143 N. C. 200, 
55 S. E. 629. 

70. Pomeroy v. Parmlee, 9 Iowa 140, 
74 Am. Dec. 328, holding that where 
property has been illegally and fraudu- 
lently seized and is being used as evi- 
dence, it is in the custody of the law 
and cannot then be seized under at- 
tachment. 

Where an officer unlawfully gets pos- 
session of a debtor's property, as by 
breaking into his dwelling house with- 
out proper authority, and then attaches 
it on mesne process, the attachment 
will be void. Closson v. Morrison, 47 
N. H. 482, 93 Am. Dec. 459. 

"The security of the public may 
justify the searching of a prisoner con- 
fined in prison upon criminal or even 
civil process, and the taking from him 
of any property in his possession that 
would aid him to make an escape. It 
would probably be regarded under such 
circumstances as a reasonable search 
and seizure; but to allow private 
parties to take advantage of the cir- 
cumstances in order that they may se- 
cure a personal benefit would be a 
violation of that faith which the com- 
monwealth owes to persons held in 
custody under its authority and laws." 
Dahms V. Sears, 13 Ore. 47, 11 Pac. 891. 

If an officer took advantage of his 
warrant, and an arrest under it, to 
take from his prisoner -property, not 
for any legitimate purpose, but simply 
for the purpose of attaching on writs 
he held, this would not justify the at- 
tachment. Closson v. Morrison, 47 N. 
H. 482, 93 Am. Dec. 459. 

71. See the title "Garnishment." 

72. Dunlop v Patterson F. Ins. Co., 
74 N. Y. 145, 30 Am. Rep. 2S3 (money 
deposited in lieu of an appeal bond), 

vol m 



282 



ATTACHMENT 



b. Property Previously Attached. — Goods which have been levied 
upon by one officer under a writ of attachment and have been taken 
into his possession, cannot legally be attached by another officer so as 
to interfere with the possession and custody of the first officer, 73 though 
other officers may make constructive levies and thus create successive 
liens, 74 or the other creditors may place their subsequent writs in the 
hand's of the same officer,- who may hold the property to satisfy the 
respective liens in 'the order of their priority. 75 But funds realized 

affirming 12 Hun 627, wherein the court 
said: "In a certain sense the money 
was in custodia legis, and the attach- 
ment could not affect the possession of 
the clerk, nor divert the money in 
any wise from the special objects and 
purposes for which it was deposited. 
But, for other purposes, the title of 
the money remained in the insurance 
company, and in the event of two con- 
tingencies its rights thereto would be 
as complete as before the deposit." 

Money Loaned to and Used by Party. 
Money deposited as cash bail, which 
had been borrowed by the defendant, 
when released on giving bond, can- 
not be attached as the property of the 
defendant before it is actually paid 
over to the true owner by the sheriff 
with whom is filed an order directing 
such payment. Ballings v. McDonald, 
76 App. Div. 112, 78 N. Y. Supp. 1040. 

73. Ark. — Derrick v. Cole, 60 Ark. 
394, 30 S. W. 760. N. H.— Ela v. 
Shepard, 32 N. H. 277; Young v. Walk- 
er, 12 N. H. 502. E. I. — Kendrick V. 
Boston, etc., E. Co., 3 E. I. 235. 

See also infra, XV. 

By garnishment of a mortgagee, in 
possession of chattels mortgaged, such 
chattels are placed in custodia legis, 
and thenceforward the possession of 
the garnishee cannot be interfered 
with by a direct levy of a writ of at- 
tachment upon the property so as to 
postpone the rights of the party in 
whose favor the garnishment had been 
made. Grand Island Bkg. Co. v. Cos- 
tello, 45 Neb. 119, 63 N. W. 376. 

When goods attached remain inter- 
mingled with the other goods of the 
debtor, another officer may attach the 
whole. SawyeT v. Merrill, 6 Pick. 
(Mass.) 478. 

A person summoned as trustee, is 
not in the condition of an attaching 
officer; and no injury will happen, if 
the goods be taken out of his posses- 
sion into the custody of the law, pro- 
vided he be secured in such a por- 

vol in 



tion of them as will enable him to dis- 
charge himself from his liability as 
trustee. Burlinganie V. Bell, 16 Mass. 
318. 

74. Conn. — Cole v. Wooster, 2 Conn. 
203. Mo.--Patterson v. Stephenson, 77 
Mo. 329. Vt — Hall V. Walbridge, 2 
Aik. 215. 

75. U. S. — Livingston V. Smith, 5 
Pet. 90, 8 L. ed. 57, under a New Jer- 
sey statute. La. — Hoy v. Eaton, 26 
La. Ann. 169. Md. — Ginsberg v. Pohl, 
35 Md. 505. Mass. — Robinson v. En- 
sign, 6 Gray 300; Wheeler v. Bacon, 4 
Gray 550; Burlingame v. Bell, 16 Mass. 
318. Tex.— Frieberg v. Elliott, 64 Tex. 
367. Wis.— Halpin V. Hall, 42 Wis. 
176. 

A marshal who has served one at- 
tachment may receive and levy a sub- 
sequent one on the property in his 
possession. Naumburg v. Hyatt, 24 
Fed. 898. 

Relation of Deputies and Sheriff. — 
The act of a deputy is the act of the 
sheriff, and when the sheriff has levied 
an attachment, the deputy may levy 
upon the same property subject to the 
first attachment. Heve & Co. v. Moody, 
67 Tex. 615, 4 S. W. 242. See also 
Claflin V. Furstenheim, 49 Ark. 302, 
55 S. W. 291, holding that another dep- 
uty of the same principal may levy 
in his principal's name subject to the 
first attachment. 

A deputy may levy upon property 
which already has been attached by 
the sheriff. Heve & Co. v. Moody, 67 
Tex. 615, 4 S. W. 242. 

As Distinct Officers. — The deputies 
of a sheriff, in relation to each other, 
must be considered as several officers 
with distinct rights, and when one dep- 
uty has attached goods by virtue of one 
writ, another cannot interfere. Denny 
v. Hamilton, 16 Mass. 402; Thompson 
v. Marsh, 14 Mass. 269; Vinton v. 
Bradford, 13 Mass. 114, 7 Am. Dec. 
119. Compare Watson v. Todd, 5 Mass. 
271. 



ATTACHMENT 



283 



from a sale under an attachment which is set aside belong to the debtor 
and may be attached. 76 

Lands may generally be levied on without an assertion of possession 
or dominion by the attaching officer, and so remain liable to be levied 
on at the instance of any other creditor. But the fact that land has 
been previously levied on by execution, by a different officer, cannot 
prevent a creditor from levying his attachment subsequently, and 
previously to its sale. 77 

c. Property Previously Levied on by Execution. 16 — Personal property, 
in the possession of an officer under execution, cannot be levied upon 
and seized by another officer, 79 though the same officer may levy there- 
on another attachment which will be a junior lien. 80 



When goods have been attached by 
a deputy sheriff, and left in posses- 
sion of a keeper, another deputy sher- 
iff cannot disturb the possession of 
such keeper by attempting to levy an- 
other attachment. Fellows v. Wads- 
worth, 62 N. H. 26. 

Another deputy may levy his at- 
tachment, not by disturbing the pos- 
session of a deputy who has already 
taken possession of the property, but 
by delivering his writ to the deputy 
in possession. Eobinson v. Ensign, 6 
Gray (Mass.), 300. 

Attachment by Special Deputy. — 
The fact that the first attachment was 
made by a special deputy will not per- 
mit another attachment to be levied 
on the same property by a general 
deputy; as the rule that a second at- 
tachment on the same property can- 
not be made by a different officer is 
founded, not upon the circumstance 
that a second attachment may be made 
by the same officer, but upon the in- 
convenience that must ensue, if, when 
one officer has the legal possession of 
goods, which are already in the cus- 
tody of the law, another officer might 
be permitted to disturb that posses- 
sion. Moore v. Graves, 3 N. H. 408. 

Property Deposited With the Clerk. 
Where bonds, left by the sheriff with 
the plaintiff for safe-keoping, Were 
turned over by the plaintiff to the 
clerk of the court, without any order 
of court, they were not in the cus- 
tody of the law, and a second attach- 
ment might be levied thereon. Lem- 
ly v. Ellis, 143 N. C. 200, 55 S. E. 629. 

76. Boddey V. Erwin, 31 S. C. 36, 
S. E. 729. 



A statute providing that when goods 
are sold and disposed of after an ap- 
praisal, the proceeds thereof shall be 
liable to be further attached, whilst 
remaining in the hands of the officer, 
as the property of the original de- 
fendant, presupposes a sale in com- 
pliance with the statute, the proceeds 
which can be attached are such as are 
in the officer's hands after and in pur- 
suance of a legal attachment, appraisal 
and sale of the property attached, and 
not the. proceeds of a sale illegal and 
unauthorized by law. Everett V. Her- 
rin, 48 Me. S37. 

77. Grigg 17. Banks, 59 Ala. 311; 
Johnson v. Burnett's Admr., 12 Ala. 
743. 

Personalty and Realty Distinguished. 
Upon the levy of an attachment on 
personal property, the officer seizes 
them and holds them in his custodv 
and they cannot be levied on, seized or 
taken into possession by another offi- 
cer; but real estate may be levied on 
and sold under a subsequent attach- 
ment, though the purchaser takes 
subject to the lien of the prior attach- 
ment, and to the control and ultimate 
action of the chancellor. Oldham V. 
Scrivener. 3 B. Mon (Ky.) 579. 

78. Attached Property Not Subject 
to Execution.— See the title "Execu- 
tion." 

79. U. S. — Corning v. Drevfus, 20 
Fed. 426. Tenn.— Bradley v. Kesee, 5 
Coldw. 223, 94 Am. Dec. 246. Vt.— 
Burroughs V. Wright, 19 Vt. 510. 

80. Day v. Becher, 1 McMull (S. C.) 
92. 

Only by Garnishment. — Perry t\ 
Sharpe, 8 Fed. 15. 

vol. in 



284 



ATTACHMENT 



As a general rule money received by an officer on execution cannot, 
before payment over, be attached in a suit against the execution 
creditor, 81 though the contrary has been held. 82 

Surplus money in the hands of an officer, arising from the sale of 
property after payment of all executions, may be attached in a suit 
against the execution defendant, 83 on a writ issued at the suit of an- 



81. U. S— Ross v. Clarke, 1 Dall. 
354, 1 L. ed. 173. Cal.— Clymer v. 
Willis, 3 Cal. 363, 58 Am. Dec. 414. 
Conn. — Geary v. Bhepard, 1 Root 544. 
Mass. — Thompson v. Brown, 17 Pick. 
462. N. C. — Hunt v. Stevens, 25 N. C. 
365. Ohio. — Dawson v. Holcomb, 1 
Ohio 275, 13 Am. Dee. 618. Pa.— 
Fretz v. Heller, 2 Watts & S. 397. S. 
C. — Blair V. Cantey, 2 Speers 34, 42 
Am. Dec. 360. Vt.— Conant V. Bick-