Titcomb v. Thomas , 5 Me. 282 ( 1828 )

Mellen C.- J.

delivered the opinion of the Court.

The first question is whether Patterson was a competent witness* ^The firm of Lambert & Patterson, of which the witness is one, were originally creditors of Titcomb & Sumner; yet it appears by the report that the present action is brought for the benefit of certain other creditors, whose names are mentioned in the special memorandum or certificate on the back of the writ. It appears also that before the commencement of the action, the full amount of the demand of Lambert & Patterson was paid to them by the creditors for whose use the suit was instituted, though a formal release and assignment .was not executed till several months after. Upon receiving payment of their demand, they ceased to have any interest in the same, or in the success of this prosecution; for it does not appear that any one is chargeablé with the expense of it, but those who claim to recover the amount sued for, in the name of Titcomb, or his equitable assignees. Our opinion therefore is that Patterson was a competent Witness, and properly admitted as such.

The second question is whether, upon the facts developed in his testimony ,the action ought to have been dismissed from the docket, in fconsequence of Titcomb'1 s disavowal and discharge. The bill of exchange declared on, for some reason or other, was not indorsed by Titcomb; but if the property of the bill was fairly and on good consideration assigned or transferred to the prosecuting creditors, it is the duty of the court to protect their equitable rights, and not suffer them to be sported with, or sacrificed by the assignor, at his pleasure. On this point it would be superfluous to cite authorities.

We proceed therefore to the third question, which is whether a legal right of action has been fairly and equitably assigned to the persons before mentioned, On a valuable consideration. An assignment of a demand need not be in writing ; it may be made by delivery. See Vose v. Handy 2. Greenl. 322, and the cases there collected. In the present case the bill, when'signed by the defendant, was delivered to Patterson the witness, who was then agent for all concerned, in the presence of Titcomb, to'whose order it was made payable, and with his consent. These facts certainly shew a legal assignment, and TitcomPs immediate discharge from prison, in consequence, was a good and valuable consideration for it.

The next question is whether there was a good and sufficient consideration for the defendant’s acceptance ? To this question the answer is obvious. The defendant came forward in the nature of a surety for his friend, to procure his liberation from imprisonment, aiid he was liberated. This was itself a legal consideration, surely' as binding as a promise in consideration of forbearance. It is the same species of consideration which gives force and effect to the promise which a man makes, when he signs a promissory note as surety for his neighbor, or indorses his paper. The promissee or creditor gives delay, and the debtor gains by it; and this is the consideration on the parí of principal and surety. This is familiar law. The act of giving up the notes by Patterson to Titcomb, was also a consideration for the draft; and beyond this, these notes were delivered to the defendant, at his request, he saying he should want them for his security, Titcomb assenting. This was an assignment of them. After all this, such an objection should not have been heard. As to Titcomb’s supposed right to control or defeat this action, on the alleged ground of duress, illegal exactions, and oppression, it is enough to say that there is not a particle of proof to establish tire fact, or warrant the imputation, Judgment on the verdict.