
    Whitaker against Williams.
    
      A, having a claim against B, for an injury to his personal property, and being insolvent, made an assignment for the benefit of his creditors, under the statute of 1828. The trustee, by order of the court of probate, and with the assent of A, sold this claim to C, who put it in suit against B, in the name of A, and recovered judgment for 75 dollars damages, and 40 dollars costs. There being a fatal defect in the assignment, D, a creditor of A, then brought foreign attachment against A and B, making B garnishee. D, in his scire-fa-cias against B, claimed to recover the amount of said judgment; and C, being duly notified, appeared and assumed the defence of the suit. On the trial, it appeared, that C, in prosecuting the suit against B, had expended more than the amount of the damages and costs recovered against B, and that the sum so expended had never been reimbursed, and A continued to be insolvent. Held, 1. that such expenditure by C, created an equitable lien in his favour, on said judgment, which constituted a defence to the scire-facias ; 2. that though the defect in the assignment rendered it constructively fraudulent, as against creditors, yet there being no actual fraud in the transaction, or in any of the parties to it, C was not thereby precluded from availing himself of such defence.
    
      New-London,
    
    July, 1850.
    This case is not novus hospes here; having previously greeted us with its presence. So much of its history, previous to the last trial of it in the superior court, September term 1849, as is now material, may be seen in 18 Conn. R. 522. and 20 Conn. R. 98.
    On the trial above referred to, no question was made, by the defendant, as to the suit of Whitaker v. Clark, either as to the issuing and service of the plaintiff’s writ, or as to the judgment rendered in that suit, the execution issued thereon, or the demand made in virtue thereof, as stated in the present scire-facias. Under this process, the plaintiff claimed to recover the amount of the judgment in the suit of Clark v. Williams, mentioned in Whitaker & al. v. Gavit & al. 18 Conn. R. 523. and Whitaker v. Williams, 20 Conn. R. 99. It was agreed, that after the service of the writ against Williams, he had, pursuant to the statute, given notice to Gavil and others, of the pendency of the suit against him, requiring them, as they were the persons who claimed to be the owners of said judgment, and entitled to the benefit thereof, to defend him, (Williams,) in the suit; and they, having given security, as by law required, had assumed upon themselves, and were conducting, the defence of this suit.
    By the mutual agreement of the parties, the bill brought by Gavit and others against Whitaker and others, and the decree of the court thereon, were offered and received in evidence, as containing the facts upon which this case should be decided. Gavit and others thereupon offered evidence to prove, that they had expended, in prosecuting the claim against Williams to judgment, as described in said bill and decree, more than the amount of the damages and costs recovered in that suit; and that the sum so expended had never been paid or reimbursed, in whole or in part, to Gavit and others, and is now wholly unpaid ; and that Clark is, and since the commencement of the suit against Williams has been, wholly insolvent.
    To the admission of the evidence, so offered by Gavit and others, the plaintiff objected ; but the court received it; and the facts offered to be proved, were proved, and were found by the court. And upon these facts, the court decided, that the plaintiff in this process, was not entitled to against the defendant, and rendered judgment for the defendant to recover his costs.
    The plaintiff thereupon moved for a new trial, on account of the admission of the evidence objected to by him, and the final decision of the court.
    
      E. Perkins, in support of the motion,
    contended, 1. That the debt sought to be recovered on this scire-facias, being a debt in the case of G. W. Clark v. Williams, is, prima facie, held by the attachment; and the plaintiff is entitled to recover, if Gavit and others fail to establish a title to the debt, prior to the attachment. The burden of proof is on them.
    2. That Eaton, the trustee, had no right to the claim in question. He has no title, but a parol assignment from Clark, in trust for his creditors; which is to be deemed fraudulent and utterly void, as against the creditors of Clark, of whom the plaintiff is one. Stat. 363. Whitaker & al. v. Gavit & al. in err. 18 Conn. R. 522. Whitaker v. Williams, 20 Conn. R. 98.
    3. That Gavit and others have no title to this debt. In the first place, in their bill against Whitaker & al., where their title is set out, they pretend to none, except what they have derived, by purchase from Eaton, as trustee of Clark. Secondly, the assent of Clark to the sale, and his approbation of it, does not strengthen their title. Thirdly, their title being the same which Eaton had, is, of course, like his, fraudulent and void, as against the plaintiff. See the authorities above cited.
    4. That Gavit and others derive no equitable title, by virtue of the fact, that they expended in the prosecution of this claim, more than the amount of the judgment recovered. In the first place, this fact does not tend at all to establish in them any title to this claim, as assignees thereof; and except for proving such title, they have no locus in curia. Stat. 118. Secondly, whatever amount they have expended, it was expended in their attempt to reduce to their possession property, their title to which is fraudulent, and utterly void, as against the plaintiff, and certainly creates no equity in their favour. Thirdly, this expenditure gives them no lien on the judgment. nor any thing in the nature of a lien. Fourthly, they prosecuted the suit at their own expense, as the owners thereof, and with knowledge of all the facts as to the trustee’s title. See 20 Conn. R. 105.
    
      Strong, contra,
    contended, 1. That the plaintiff, in this scire facias, can have no claim for the costs recovered in the suit in the name of Clark against Williams. Clark himself had nothing to do with the prosecution of the suit in which those costs accrued. None of the expenses were defrayed by him, nor from his funds.
    2. That if Clark, or any one else in his right, or as his creditor, should claim the damages in the suit against Williams, as recovered for a cause of action belonging to him, there are divers answers which may be given. In the first place, as these damages are for a tort, which the creditors of Clark could not attach in his suit, he can have no right to complain, that Gavit and others receive the avails. Secondly, there is no room for the imputation of fraud, other than the trust for the benefit of the debtor, which this exemption from attachment repels. Patten v. Smith, 5 Conn. R. 156. Thirdly, Gavit and others have a lien on these funds, collected to defray the expenses of collection ; and those expenses, it is found, exceed the amount collected.
    3. That the equitable title to these damages is in Gavit and others, from the purchase made under the assignee, with Clark's assent; there being no fraud against them, but a strong equity in their favour.
   Storrs, J.

On the re-trial of this cause, since it was before us at the last term, (20 Conn. R. 98.) the same facts were admitted, which were admitted on the former trial; and Gavit and others, the real defendants, further proved, that they had expended, in prosecuting the suit in favour of Clark against Williams to judgment, as stated in the bill and decree which were in evidence, more than the amount of the damages and costs recovered against the defendant in that suit; and that said sum so expended, had never been reimbursed, in whole or part, to them ; and that Clark is, and ever since the commencement of said suit against the defendant, has been, insolvent. Gavit and others thereupon claimed, that such expenditure created an equitable lien in their favour on the said judgment, which constituted a defence to this suit. The court below so decided; and as we think, correctly.

This point, as a majority of the court thought, was not involved ; and therefore, could not be considered, when this case was before presented to us, because the additional facts did not then appear, which were shown on the last trial, and on which this question is now raised. We then decided, that under the act of 1828, in addition to the act against fraudulent conveyances, the assignment of Clark was to be deemed fraudulent and void so far as it respected his claim upon Williams, as against the creditors of Clark, of whom the plaintiff was one ; and that therefore, Gavit and others, as they had no title to said claim, excepting by a purchase thereof from the trustees under that assignment, could not retain that claim, as against the plaintiff, who had attached it against the assignor. On the last trial, however, Gavit and others interposed another defence, as they had a right to do, founded on the facts newly appearing, which have been mentioned, and insisted, that on those facts they had an equitable claim on the judgment recovered against Williams, to which it was subject, when it was attached by the plaintiff. As the title of Gavit and others, under said trustees, is now out of the question, that having been decided to be invalid, the enquiry is, whether they have a good title to it as against Clark. If they have, the plaintiff cannot recover, because he attached it subject to any legal or equitable claim or defence against Clark, to which it was subject when so attached. The judgment was recovered, in a suit, brought in the name and with the assent and approbation of Clark, by Gavit and others, who advanced all the moneys necessary to render it effectual. According to our previous decision, that recovery was for the benefit of Clark, and not of his trustees. He has become a bankrupt, never having refunded those moneys. If there were no other circumstances in the case, Gavit and others would clearly have an equitable claim on the judgment, to the extent of such advances, which here exceeded the amount of the recovery; and neither Clark, nor the plaintiff, claiming, as he does, under a subsequent title from him, should be permitted to interfere with the judgment to their injury. It would manifestly be the greatest injustice to. allow either Clark or the plaintiff to put the avails of it into his own pocket. We perceive no circumstances in this case, which should impair this lien of Gavit and others. It is true, both they and Clark, when they so operated in the prosecution of the suit against Williams, were mistaken as to the effect of the assignment, and erroneously believed, that a title to the claim had been acquired under it, by Gavit and others, by virtue of a purchase of it from the, trustees. They supposed, that although it was not conveyed, by the assignment, in terms, a court of equity would rectify that instrument, so as to make it express the intention of the parties, which was to insert it.

We decided, however, that it could not be thus corrected ; the effect of which was, that the claim did not pass under it, but remained in Clark, and was liable to the process of foreign attachment, by his creditors; and it is by virtue of such process, that the plaintiff claims to appropriate it, in this suit, to his own benefit, as the property of Clark. The judgment against Williams having enured to the benefit of Clark, and been recovered by his assent and cooperation, and procured, through the instrumentality of the funds of Gavit and others, why should their mutual mistake as to the effect of the assignment, throw the expense of the recovery upon the latter? Why should not such expense fall on Clark, as though there was no such mistake, and the suit had been prosecuted with his consent, for his avowed benefit ? Is there any doubt, that in an action of assumpsit, by Gavit and others, against dark, under these circumstances, to recover such expenses, the law would imply a promise, by the latter, to pay them ? We think there is not; and this seems to be decisive on this point.

It is urged, however, by the plaintiff, that the assignment, under which the claim was purchased and prosecuted, has been pronounced fraudulent as to the creditors of Clark ; and that therefore, a court will not assist the parties, as against those creditors, in any transaction connected with it. If there were any actual fraud in the object of this assignment, there would be force in this claim ; but none is imputed to any of the parties to it, or to Gavit and others. It was decided to be only constructively fraudulent, because it did not comply with the requirements of the statute under which it was made No moral wrong was involved in the transaction ; and we are not aware of any case or principle, which requires us treat such a transaction as fraudulent, excepting when a claim is set up under it against those as to whom it is thus construe-tively fraudulent. But in this case, Gavit and others set up a claim to the judgment against Williams, not under the assignment, but only under an arrangement with Clark, which derives no force or validity from it, and was subsequent to and unconnected with it. We give to the plaintiff the full benefit of the invalidity of the assignment. So far, therefore, from sanctioning or enforcing it, or any rights claimed under it, we treat it as being fraudulent and void, as against the plaintiff, and view the case as though it had never been executed. And we cannot doubt, if it never had been executed, and the arrangement found in this case had been made between Clark and Gavit and others, the latter would have an equitable lien on the claim which the plaintiff here seeks to recover.

A new trial is not advised.

In this opinion the other Judges concurred.

New trial not to be granted.  