
    
      BAINBRIDGE vs. CLAY.
    
    i'he creditors of the assignor may seize the debt assigned, as long as the assignee has not given notice of the assignment to 1he debtor.
    Api-eal from the court of the first district.
   Martin, J.

delivered the opinion of the court This case was lately remanded for further proof, the same judgment was given, and Bain-bridge appealed. Vol. 3, 671.

The facts of the case are, that Clay obtained a judgment against Oldham, and Bainbridge one against Clay. Bainbridge having taken out a ft, fa. on his judgment, Polk, the agent of Oldham paid into court the amount of Clay’s judgment against Oldham, and Baiiihridgo prayed that the court order the money thus in court to be applied io his judgment,

Heunea intervened and claimed l.lu: amount of the judgment against Oldham, as assignee of Waggaman to whom he alleged Clay had assigned it.

A debt due to the defendant on a fi. fa. cannot, as to third parties completely pass to the assignee, unless there be what, in sales of tangible property,is called a tradition,or delivery, and «his is effected, as To cfioses in action, by notice of the assignment to the debtor.

In the presents case, the record shews that the sheriff received Bainbridge’s fi. fa. against Clay, on the 1st. of February, 1825.Qnthat day, according to few,Clay’s personal property was so affected by they?, fa. as no longer to be sale-able by him, to the injury of the plaintiff in the fi.fa.

Folwell, a witness of the assignee, deposes he delivered a copy of both assignments to Oldham, on the fourth day after he left New-Orleans, and he believes he left that city on the 31st of January. So that, according to this witness, the notice, which was in lieu of the tradition of property, took place,after fi.fa. ofBainbridge was put in the hands of the sheriff. ⅛ : _ , ;

Farrie, another witness of the .assignee, de-. poses that, in a conversation that took place in the clerk'soffice, between Hen nen, Waggaman, and Polk, the agent of Oldham, lie heard H eu« „ *. „ , . . . nen tell f olk. In; «⅛ the a~r ¡evo oí 1 ¡¡¡⅞ - judgment against Oldham, and requested i'oik not to pay the money to any body else. The witness believes this was before ihsiubridge took out his fi. fa. against Clay, but he cannot recollect any particular circumstance that induces this belief: neither can he recollect the time, when he issued the execution /. c. when it went out of the office. líe H the deputy clerk. Polk’s testimony docs not make the evidence much clearer.

Admitting what is extremely dubious, that it clearly results from (his man’s testimony, that the conversation with Polk took place before the fi. fa. issued, nothing t-hev, ¾ that Polk was such an agent, to «Lorn ¡men a notice could be legally given. It only appears he had Oldham’s money in his bounds and was directed to discharge the judgment.

We therefore conclude this conversation does not establish a legal notice. Polk did not consider himself authorired to pay Henuen, although he proposed giving his check, since he paid the money in court.

It is therefore ordered, adjudged aud decreed, that the judgment of the district court be annulled, avoided and reversed, and it 13 further ordered that the money m court, paid by Peik in discharge of Oldham, he applied to the discharge of Bainbridge's judgment against Clay, and that the assignee and appellee pay costs in this court.

Waggaman, on an application for a rehearing. The notice to Polk, the day before issuing the execution. of Bainhridge, is proved both by Polk and Farrie. But it is said Polk does not appear to have been such an agent as could receive notice. What was Polk’s agency? To pay over this money in satisfaction of Clay’s judgment merely. But the law gives him in addition alt the powers necessary to carry this info execution, in a proper manner, e. g. to take receipts for the payment, and to see satisfaction entered on the record, and he would have been wanting in his duty, and answerable to Oldham, for neglecting to do so. This satisfaction could only be entered by Hennen, and Polk must have paid to the claimant. It may be said, that Oldham, had no means of knowing of the assignment, and could not have intended an authority to meet it; this is true, but he knew the judgment was assignable, and might be transferred; though he could not foresee the claimant would be the assignee, the person who was to receive, was oí'no consequence; the satisfaction of the judgment was the-object of the mandate, and it seems to Ingoing too far, to say Folk's authority did not extend to informing himself who was the person authorised to receive. Had Clay died in the interval, Polk might well have rocen e<I notice of, who were heirs or executors, and paid accordingly. See the case of Touro vs. Cushing, vol. 1, 425, In a similar case o notice was given by an agent, and no question was made as to his authority; and, if an agent’s power authorises him to give, it would seem to authorise him to receive, notice. The right to receive this notice appears to be an affair for Oldham to decide upon. But if Polk was not such an agent as to receive notice of an assignment of a debt, how could he be «uch an agent as could receive notice of its seizure; for, as will be seen hereafter noticed, it was not the money that was or could be seized, it was the debt, the incorporeal right due from Old-ham to Clay, and that should have been seized in the debtor’s hands, which leads to the second question.

Was the ft. fa. a lien on this .money? And could the plaintiff legally seize it, under the iC-rmb of the writ, kl property oí John Clay?’’ The debs, attempted to be seized, is due in Oldham to Clay, and is clearly the property of die latter: but Oldiiam reside- in another parish where the sheriff of Orleans could not act, . :•= nor could a Ji. fa. in his hands bind or prevent the transfer of Clay’s property. It is therefore, clear that the execution ot Bninbridgc did not attach to or bind the estate of Oldham, unless the identical money'in Polk’s hands, was the property of Clay. Independently of the express admission, page 5 of the record, that the money was Oldham’s, and that Polk had no property ofClay in his hands, surely Oldham might, at any instant before the seizure, have withdrawn it from Polk’s hands; he might have applied it to the payment ot’anolherdcht.orpul it in his pocked and buffered Clay to seize' on his property. Had it, the money, been stolen or destroyed, no one would been heard to say the loss was Clay’s or that his judgment against Oldham was thereby satisfied. Had there been an attachment or seizure in the sheriffs hands,on the judgment ofClay against Oldham, there cannot exist a doubt, it might have been seized and sold as his property; but it is diili cult So comprehend how calling it Clay’s pro perty,in the absence of any thing like a writ of , r , seizure or execution on the part oí Clay, could juaij-g bis. Suppose Clay had agreed to re-coivc, iu satisfaction of hisjuilgnmnu a piece of land or a. slave, could Bainbrnige before the conveyance made, seize it as Clay’s. The party until the execution of the act may always retreat, and in the case of the money, he could equally have refused its payment to Clay; it was still under the controul of Oldham, until execution or seizure by Clay, and he was competent to dispose of it, at pleasure. The plain, tiffhas mistaken an intention to pay, for an ac~ - teal payment and has mistaken Oldham’s money, for Clay’s debt. The latter he might have seized in Oldham’s hands, by an execution directed to the parish of Lafourche, the residence of ftldham; the former upon the principles of the judgment he could not seize, as Clay’s pro-petty, until it was delivered, any more than he ::could have seized' a lot of sugar and cotton shipped to the debtor, against the proceeds-of which, were to be applied to the same pur. pose.

limncn, on the same side. - The appellee would respectfully suggest to the courts that a part of the record has, been overlooked in deciding this case.

The letter of Oldham, introduced by the de-fendan-t, without exception thereto by Bain-bridge's counsel, acknowledges the receipt of th° Setter et the defendant, dated 25th January, 1825, announcing the assignment of the debt by Clay. Another letter of the 30tli January, 1825, stating the same fact, was received by him. Further, the defendant ottered a witness to prove that notice had been given to Gld-ham, by his own acknowledgment, prior tci the execution of Bainbridge. This evidence was rejected below; and a bill of exceptions taken. This appears not to have been noticed by the court, as nothing is said on the point, in the opinion delivered, it is believed that this evidence was admissible; if so, the complexion of the case would be totally changed, should the cause be remanded for the purpose of receiving this evidence.

.. For these reasons the appellee prays that a rehearing may be granted him.

The rehearing w as refused. ⅛ announcing this, Martin, J. said—We have considered that the notice to Polk had not the effect of destroying the right oí the plaintilTin the />. ;n. This notice was not equivalent to a delivery or tradition, for it left Oldham the absolute coin troul of the thing assigned. He might, notwithstanding this notice, till it was communicated to him, have made a legal payment to Clay, or any other assignee, besides Hennen, who might have presented himself. Hennen was like a purchaser of goods, before delivery, till knowledge of the assignment was given to Oldham himself for till then a payment Mould have defeated his right on Oldham.

By placing his p./a. into the sheriffs hands, Bainbridge acquired a lien on Oldham’s property, susceptible of being levied on, on all Clay’s goods in his stores, or any of his agents, holding for him, on the debt of Oldham, in the hands ol Polk, or any other agent, and this right was not defeated by Polk paying the mo* ney into court.

In the present suit, both parties had a claim which the court might have recognised. Bain-bridge had a fi. fa. which gave him a lien on any property of which Clay had the disposition. This money, then, being at Clay’s disposition, would have been ordered to be paid to him, unless another person opposed his demand by shewing a better right. Let it. be granted that Honnen might have successfully opposed ClayL rail on the court. How stands the matter between Ifeimen and Bainbndge.-' Hennen has an assignment: but the assignment of a debt is not in the way oía creditor, till served on the debtor: because that service alone deprives the latter of the faculty of paying to anyone, but the assignee. Bainbridge, on the contrary, produces a fija, which gives him a lien on ail (day's property. It attached on the debt, due to Clay by Oldham, on the money, the instant it was paid in discharge of Clay's judgment, and thus became Clay’s.

But it is said there is evidence of notice to Oldham himself.

According to Folwell's testimony, copies oi the assignments were delivered to Oldham on ■1th of February: theji. fa. was put in to the sheriff's hands on the 1st. According to Fame, admitting that the notice to Folk was notice to Oldham, there is no great, certainty that Polk was notified before the fi. fa. issued. The witness believes it, but cannot recollect any circumstance that induces such a belief These gentlemen are Mermen's own witnesses.

Our attention has been drawn to a hitler o> Oldham, in which he acknowledges the receipt ©f Hennen's letter, apprising hint of the assignment: but this letter is without a date; and its post-mark refers to a day posterior to that or, which the f. fa. came to the sheriff's hands.

So that no part of the evidence on the recoro establishes, what is essential to Hennen's recovery, notice to Oldham, anterior to the sheriff's receipt of the execution.

We did not consider the bill of exceptions required any notice. It appeared to us obvious the judge was right. Evidence was offered of " the verbal acknowledgement ol‘ Old-ham to the witness, that he had received notice of the assignment from Clay to VI aggaman, and Waggaraan to Hennen, before the execution issued in favor of Bainbridge ”

Now this was mere hearsay testimony. Old-ham should have been brought. It is now said here, that this acknowledgement was made lx, fore Bainbridge took out his fi. fa. But if that was the case, the counsel ought to have math if appear on the record.  