Larrabee v. Knight , 69 Me. 320 ( 1879 )

Walton, J.

It is settled law in this State that, if one summoned as a trustee is notified before making his disclosure that the funds in his hands have been assigned, and he neglects to disclose the assignment, his being charged will not be a bar to a suit against him for the benefit of the assignee. Milliken v. Loring, 37 Maine, 408. Bunker v. Gilmore, 40 Maine, 88.

But it is claimed that this rule of law is inapplicable to this ease, because, notwithstanding the trustee in the former suit (defendant in this) had notice of the assignment, and notwithstanding he neglected to disclose it, still, it was made known to the court by the assignee himself, and its validity either was, or might have been, determined in that suit, and cannot, therefore, be again brought into litigation. In other words, the defense is substantially res adjudícala, — the matter has been once put in litigation and cannot be put in litigation again.

The court is of opinion that this defense fails for want of proof of the facts on which it rests. There is no evidence that the assignee’s claim was brought into litigation in the former snit. There is no evidence that its existence was ever known to the court at the time the judgment charging the trustee was rendered. True, the assignee filed with the clerk a statement of his claim ; but this was after the disclosure of the trustee had been passed upon, and there is no evidence that any action whatever was had upon the claim, or that the court, or the adverse party, even knew of its being filed with the clerk. The attempt by the assignee to obtain an adjudication upon the validity of his claim was made too late,— the trustee had already been charged — and it is not improbable that it was for this reason that the assignee abandoned his attempt to protect his rights in that suit and resorted to this. Yery clearly the proceedings in that suit are no bar to this. Such was the ruling of the justice of the superior court. We think the ruling was correct.

Exceptions overruled.

Appleton, C. J., Barrows, Yirgin and Libbey, JJ., concurred.