Robbins v. Bacon , 3 Me. 346 ( 1825 )

Mellek C. J.

delivered the opinion of the Court, at the ensuing August term in Oxford, as follows.

In this case the only question presented by the. exceptions, which are a part of the record, is whether the instructions given by the presiding Judge of .the Court of Common Pleas were correct and legal ? If not, the judgment must be reversed and a trial had in this Court; when all the facts in support and defence of the original action may be re-examined and decided upon, according to their merits by the Court and jury. On this writ of error we can only notice the objections raised on the exceptions to.the Judge’s instructions, in relation to the sufficiency of the assignment made by Robbins to the Messrs. Stockbridge, for whose use the action was brought, of the debt due to him from Bacon the present defendant. The words of the Judge are, that c‘ as the “ Messrs. Stockbridge did not give the defendant any intimation “ that they were the owners of the demand in question, on its “ having been assigned to' them, other than what was apparent “ upon the face of the account and order, the defendant was not “ bound to know that an assignment had been intended.” It will be admitted that if the account and order at the foot of it, were legal evidence, when unimpeached, of an assignment of the debt due fi;om Bacon to Robbins; and that the exhibition of it by the Messrs. Stockbridge to Bacon was evidence, when unimpeached, of their ownership of it, then the defendant was bound to know that an assignment thereofhad been intended.; The bill of exceptions does not diáclose any such impeaching evidence; and Parsons C. J. in the case of Dix & al. v. Cobb & trustee 4 Mass. 508, says, “ The assignment in this case may be fraudulent, but on its face £C it appears to be regular, and for a valuable consideration; and “ we cannot presume fraud.” In the case before us the order is for value received and refers to the account at the foot of which it was drawn. What then is necessary to constitute an assignment of a debt ? There is in Courts of law an increasing liberality and disposition to protect the equitable rights of assignees to choses in action, and we have lately had occasion to examine the decisions on this subject in the case of Vose v. Handy 2 Greenl. 322. It is now settled that an assignment need not be in writing. A bond or note may be assigned upon valuable consideration by mere delivery to the assignee for his use. In those cases the bond or note is evidence of the debt due. When the debt is due on book merely, as a man cannot deliver over to an assignee of such debt his general book of accounts; a copy of the account taken from the book with an order on the debtor, may well be considered as equivalent to a delivery over of a bond or note. Such a copy authenticated by the signature and order of the creditor, is in its nature tantamount. It is an authority to go to the debtor and receive the money for which a valuable consideration has been given; and the possession of a bond or note would give no more authority. In all these supposed cases, a suit, if necessary, must be brought in the name of the creditor for the use of the assignee. We think the analogy is strong; but we do not rest on this merely, and upon the reasoning founded upon it; because in addition to the cases cited and commented upon in Vose v. Handy there are some others still more nearly resembling the case before us. In Gibson & Johnson v. Minet & Fector 1 H. Bl. 602, Lord Chief Baron Eyre says — “ The theory of a bill of exchange is, that the bill is an assignment to the payee of a debt due from the “ acceptor to the drawer; and that acceptance imports that the “ acceptor is a debtor to the drawer or at least has effects in his “ hands.” In the case before us, the acceptance by Bacon of the order was not necessary to establish the existence of the debt from him to Robbins. The bill 'of exceptions states this expressly. But a case which seems directly in point is that of Mandeville v. Welch 5 Wheaton 277. In that case it was decided as stated by Story J. in delivering the opinion of the Court, that, “ where an order is drawn for a particular fund, it amounts to an iC equitable assignment of that fund; and, after notice to the <c drawer, it binds the fund in his hand.” But the Court decided that the same principle would not apply to a partial assignment of a fund, unless expressly assented to by the drawee. See also the case of Adams v. Robinson 1 Pick. 462, and Crocker & al. v. Whitney cited by the plaintiff. According to the principles and decisions we have stated, we are led to the conclusion that the instructions of the Judge, to which the bill of exceptions was filed, were incorrect, and accordingly we reverse the judgment of the Court of Common Pleas, and order a new trial of the cause at the bar of this Court.