Forth and Others v Stanton, Widow
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 217
COURT OF KING'S BENCH
See Sutton v. Grey [1894], 1 Q. B. 288; Harburg Comb. Company v. Martin [1902], 1 K. B. 779.
1 WHS. SAUHD. 210. HIL. 20 AND 21 CAR. II. REGIS 217 [210] 30. forth and others versus stanton, widow. Trin. 20 Car. II. Regis, Eol. 484. [See Sutton v. Grey [1894], 1 Q. B. 288; Harburg Comb. Company v. Martin [1902], 1 K. B. 779.] S. C. 2 Keb. 465. 1 Lev. 262. Asmmpsit. Plaintiff declares, that defendant's testator was indebted to A. who, after the testator's death, assigned the debt to plaintiff, and appointed him to receive it to his own use; and defendant in consideration that plaintiff would accept defendant for his debtor, promised to pay it to plaintiff. Thia is not a sufficient consideration to support the promise, to charge defendant de bonis propriis.(l) Assumpsit.--The plaintiffs declare, that one Robert Stanton, the late husband of the defendant, was indebted to John Neve and Timothy Alsopp in 1001. for beer sold (1) But if the promise be, in consideration of forbearance by such assignee of the debt, to sue the executor or administrator, that is a sufficient consideration. 1 Rol. Abr. 20, pi. 11, Pitt v. Brid-gewater. S. C. Hard. 74. 1 Lev. 188, fiutsel v. Haddock. For it is sufficient in the case of any other debtor, whom the assignee of the debt forbears, at his request, to sue. Hard. 71, Reynolds v. Prosser. 1 Vent. 153, Oble v. DiUlesfiekl. 1 Rol. Abr. 29, pi. 60; though Potter v. Turner, Winch, 7, arid Palm. 185, S. C. was decided to the contrary : but this is contradicted by all the other authorities.(ffl) If forbearance to sue, by an assignee of a debt, be a sufficient consideration to make an executor, &c. liable de bonis propriis, forbearance, by the creditor himself, must of course be a sufficient consideration. 9 Rep. 94 a. Bane's cane. Cro. Eliz. 644, Chambers v. Leverage. 1 Rol. Abr. 15, pi. 3. Ibid. 24, pi. 33. 2 Lev. 122, Hawex v. Smith. And it is not necessary in the case of forbearance, where the executor, &c. is charged de bonis propriis, to aver in the declaration that defendant had assets. 9 Rep. 94. But it is said in this last case, that if there be no assets, it shall be given in evidence. This opinion has been overruled since. 1 Rol. Abr. 24, pi. 33. 2 Rol. Abr. 684, pi. 5. Yely. 11, Goring v. Goring. 2 Lev. 3, Davis v. Reyner. 1 Vent. 120, Davis v. Wright. But in an action against him in the character of executor, &c. to recover a demand out of the testator's estate, a promise by the executor is a mere nudum pactum, if there were no assets. 5 T. R. 8, Pearson v. Henry. 1 T. R. 350, note (a), liann v. (a) [7 A. & E. 19, Morton- v. Burn. 2 N. & P. 297, S. C. accord.] Although a chose in action cannot be assigned in law, yet it may in equity; and the forbearance of the assignee to sue either at law in the name of the assignor (which the Courts permit, 1 T. R. 26, Delaney v. Stoddart) or in equity in his own name, is as beneficial to the debtor as if the assignee had been the original creditor and had forborne ; it is therefore a good consideration for a promise to pay the assignee. The Courts of Law have in several instances taken notice of assignments of chose* in action. In 1 T. R. 619, Winch v. Keeley, the plaintiff, a bankrupt, sued for a debt which he had assigned to a third person before his bankruptcy : the defendant pleaded the bankruptcy, and the plaintiff replied the assignment. The Court held the replication good, because the debt so assigned did not pass under the commission. 4 T. R. 690, Hmeell v. M'lvers, S. P. 3 Bos. & Pull. 40, Carpenter v. Marnel. [9 A. & E. 292, Dangerfield v. Thomas. 1 P. & Dav. 287, S. C. 8 M. & W. 743, Parnham v. Hurst. See further 9 Bing. 372, Crowfoot v. Gurney. 2 M. & Scott, 473, S. C. 5 A. & E. 107, Tibbit* v. George. 6 N. & M. 804, S. C. 9 A. & E. 375, Hutchinson v, Heywartli. 1 P. & Dav. 266, S. C.] So in 1 Bos. & Pull. 447, Legh v. Leijh, where the assignee sued in the name of the obligee, the Court set aside a plea of release by the obligee. But the assignee of a bond, originally given by the plaintiff for the use of another, cannot set it off in an action against himself. 16 East, 36, Wake v. Tinlder. [So where the plaintiff had bargained with one J. E. for the purchase of houses, and the defendant, in consideration that the plaintiff would sell and give up to him (the defendant) the said bargain, promised to pay him a certain sum, it was held, that there was nothing illegal in such an assignment of a chose in action, 218 FORTH V. STANTON 1 WMS. SAUND. 210. by them to him, and being so indebted, the said Robert Stanton died; after whose death the defendant took into her hands goods and chattels of the said Robert Stanton, of the value of 1001. and administered those goods and chattels, as executor of the Hughes.(b) In 1 Ves. 126, Eeech v. Kenneyal, Lord Hardwicke observes, that if au executor promises to pay a debt of hia testator, a consideration must be alleged; as of assets come to his hands; or of forbearance; or if admission of assets is implied and that it was a good consideration for the defendant's promise. 2 Bing. 437, Seaman v. Price. 10 Moore, 34, S. C. 4 B. & C. 525, S. C. in error.] See the observations of Buller J. as to assignments of choxes in action, in 4 T. R, 340, Master v. Miller. The assignee of a Scotch bond may sue here in his own name in assumpsit. 8 T. R. 595, Innes v. Dunlop. The assignee of an Irish judgment by coynovit, may sue here in his own name. 3 Taunt. 82, O'Callaghan v. Marchioncxs Thomond. The assignee of an India bond formerly could not; 13 East, 509, Gli/n v. Baker ; but now he may by stat. 51 Goo. 3, c. 64, s. 4. The assignee of an India certificate cannot; 16 Ves. 443, Williamson v. Thompson; [nor the trustee under 54 Geo. 3, c. 137 (Scotch Bankrupt Act). 6 M. & S. 126, Jeffery v. M'Taggwt. See now stat. 2 & 3 Viet. c. 41, and 2 Scott, N. R. 229, Fergusson v. Spencer; where it was hold that the assignees of an Irish bankrupt can sue]. Bills of exchange and promissory notes are assignable, so as to give the assignee a right of action in his own name, the former by the common law, the latter by stat. 3 & 4 Ann. c. 9, s. 1. In a modern case it was decided, that negotiable instruments are to be considered rather as personal chattels, than as chosen in action; and it was held, that where a bill of exchange had been given to a feme sole, who married before it became due, her husband might maintain an action upon it in his own name without joining the wife, and without any indorsement having been made by her. 1 B. & A. 218, M'Neilaije v. Holloway. However, husband and wife may join in an action on a note given to the wife during coverture; at least if it do not appear that she was not the meritorious cause of action ; 2 M. & S. 393, Phillishirk v. Pluckwell; and where a note is given to the wife during coverture, for securing her money, part of which the husband receives and dies, the remainder will survive to the wife; 2 Madd. 133, Nash v. Nash; in which laat case the Master of the Rolls [Sir Thos. Plumer] treated the note aa a chose. in action. [See also 2 B. & Ad. 447, Richards v. Richards. 6 M. & W. 423, Outers v. Madely; which authorities are decisive in favour of the wife's right, by survivorship, to a note made to her during coverture, (though it will pass by the indorsement of the husband alone, 2 A. & E. 30, Mason v. Morgan. 4 Nev. & M. 46, S. C.,) and qualify, if they do not overrule, the doctrine laid down in M'Neilage v. Holloway, that a promissory note may be treated as a chattel in possession.] Stock and money in the public funds are not goods and chattels, but c/to.se.s in action, and do not pass by a grant of bona et catalla felonum. 5 Price, 217, Rex v. Capper and Others. Of late, other mercantile instruments have been held to be transferable by indorsement, so as to vest the property in the assignee, and enable him to sue in his own name: as bills of lading, 5 T. R. 683, Lickbarrow v. Mason, [Mood. & M. 511, Renteria v. Eliding,] and West India dock warrants, 1 B. Moore, 12, Zwinger v. Samuda. 1 Taunt. "265, S. C. 7 Taunt. 278, Lucas v. Dmrien. 1 B. Moore, 29, S. C. [See further, as to foreign Government securities, 3 B. & C. 45, Gwgier v. Miewlk. 7 Bing. 284, Lang v. Smyth. 5 M. & P. 78, S. C.] An assignment of a chose in action need not be by deed. 4 T. R. 690, Howell v. M'lvers. Nor indeed need it be in writing. 4 Taunt. 326, Heath v. Hall. [There is an exception to the general rule of law, that a chose in action cannot be assigned, viz. that where there is a debt due from A. to B., and a debt to...
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