
    
      Dunn v. Price.
    April, 1840,
    Richmond.
    (Absent Brooke and Parker, J.)
    Pleading and Practice — Bonds—Assignment—Action against First Assignor by Second for Benefit of His Assignee. — Assumpsit is brought in the name of S. D. for the benefit of B. V. against a defendant as assignor of a bond. The defendant pleads, 1. that after her assignment to the plaintiff, and before the bond became due, the plaintiff assigned unto one E. V. all his right, title and interest in and to the bond, by reason whereof no right of action against her as assignor was in the plaintiff, but the right of action against her was in the said E. V.; 2. that after her assignment to the plaintiff, and before the commencement of this action, the plaintiff, being charged in execution, toot the oath of insolvency and was discharged as an insolvent debtor, by reason whereof all the estate belonging to him became vested in a sheriff, and no right of action against her as assignor remained in the plaintiff. On a demurrer to these pleas, Held that neither of them is sufficient to bar the plaintiff from maintaining the action.
    Same — Appellate Jurisdiction — Reversal as to One Count — Affirmance as to Another. — To a declaration in assumpsit containing two counts, the defendant pleads the general issue. Afterwards he files two additional pleas to the first count, tlpon a demurrer to these pleas, the circuit court, holding both of them to be good, enters judgment for the defendant upon the first count. At a subsequent day, the issue is tried on. the second count, and verdict and judgment rendered for the defendant on that count. Upon a supersedeas, the court of appeals is of opinion that there was e^ror in overruling the demurrer : Held nevertheless, the defendant is entitled to the benefit of the verdict and judgment on the second count.
    In the circuit court of Henrico, at August rules 1830, a declaration in assumpsit was filed in the name of Samuel Dunn, otherwise called Samuel Dunn administrator of David Holloway deceased (who sues for the benefit and at the costs of Edward Valentine), against Eucy Price. The first count alleged that Joseph Carter, on the 7th of November 1822, made his writing obligatory whereby he acknowledged himself bound unto Eucy Price in the sum of 989 dollars 30 cents, with a condition for the payment of 494 dollars 65 cents on or before the 7th of December 1825; that the defendant afterwards, on the first of January 1824, by an endorsement in writing on said bond, for value received by her from the plaintiff, assigned and transferred all her right, title and interest therein to the plaintiff, by the name and style of Samuel Dunn _ administrator of David Holloway deceased; that the plaintiff cannot and could not recover the amount mentioned in the condition of said bond, of the said Carter, he the said Carter having, before the said sum of money became due and payable according to the tenor and effect of said bond and the condition thereof, become, and continuing to be, wholly and notoriously insolvent and unable to pay the same or any part thereof; and that Carter has absconded and left the county aforesaid, and gone to parts without the limits of this commonwealth. By reason of which premises the defendant became bound to pay the plaintiff the sum of money mentioned in the condition of said bond, with all interest due thereon, and being so liable, the said defendant, in consideration thereof, undertook and assumed upon herself and promised to pay' the plaintiff the same.
    The second count alleged that the defendant was indebted to the plaintiff in the sum of 1000 dollars, for money lent and advanced to, and paid, laid out and expended for the defendant, and in the further sum of 1000 dollars, for money had and received to and for the use of the plaintiff, and being so indebted, the defendant, in consideration thereof, undertook and promised the plaintiff to pay him the same.
    A trial being had upon the general issue, the jury failed to agree, and a juror was withdrawn and the cause continued.
    The defendant afterwards filed two additional pleas to the first count of the declaration. One of them alleged that after she assigned the bond to Samuel Dunn, by the name and style of Samuel Dunn administrator of David Holloway, and before the b'ond became due, to wit, on the 24th of March 1824, the said Samuel Dunn, by the name and style of Samuel Dunn administrator of David Holloway deceased, assigned unto one Edward Valentine all the right, title .and interest whatever of him the said Samuel Dunn, as administrator aforesaid or otherwise, of, in and to the said bond; by reason of which assignment no right of action against the said Eucy Price, as assignor of the said bond, was in him the said Samuel Dunn at the time of the commencement of this suit, but all right of action against the said Eucy Price as assignor aforesaid was, at the time of the commencement of this suit, in him the said Edward Valentine.
    The other plea alleged that after the defendant assigned the said bond to the said Samuel Dunn, by the name and style of Samuel Dunn administrator of David Holloway, and before the commencement of this action, he the said Samuel Dunn, being then charged in execution in a suit commenced and prosecuted in a court of record within this commonwealth, was brought before two justices according to law, and thereupon subscribed and delivered in a schedule of his estate, and made oath and swore in such manner as is prescribed by law for the relief of insolvent debtors, and after delivering in such schedule and taking such oath, was discharged byT warrant from the said justices; by means whereof all the estate belonging to the said Samuel Dunn became vested in a sheriff, and no right of action against the said Eucy Price, as assignor of the said bond, remained in him the said Samuel Dunn at the time of the commencement of this suit.
    To these pleas the plaintiff demurred, and the defendant joined in the demurrer.
    On the 15th of May 1833, the matters of law arising upon the demurrer being argued, the circuit court held *that each of the pleas demurred to was sufficient to bar the plaintiff from maintaining his action as to the first count, and judgment was entered that he take nothing by that count. As to the second count, the cause was retained on the docket for a trial to be had of the issue joined.
    During the same term, to wit, on the 6th of June 1833, a jury was sworn to try the issue, who returned a verdict that the defendant did not assume upon herself, as in pleading she had alleged; and judgment was entered that the plaintiff take nothing by his bill, and that the defendant recover her costs.
    On the petition of the plaintiff, a super-sedeas was awarded.
    Johnson for the plaintiff in error.
    The judgment is erroneous because neither of the special pleas presented any bar to the action on the first count. If the assignee had even sued the obligor, there is an express authority of this court to prove that an assignment by him is no answer to the action. Garland v. Richeson, 4 Rand. 266. But there is no pretence for saying that an intermediate assignee maj' not maintain an action against his immediate assignor. At common law, a remote assignee could have maintained no action against any assignor except his own immediate assignor. And the act of assembly, which gives the action against the remote assignor, does not take away the action from the immediate assignee. The holder has a right to strike out all the assignments but that on which he chooses to rely.
    Robinson for defendant in error.
    It is conceded in Garland v. Richeson, that if the obligee in a bond were to transfer by assignment his whole right, legal as well as equitable, to his assignee, no suit could afterwards be maintained in the name of the obligee. It is because the obligee is considered not to transfer the legal *right to his assignee, but only an equitable right, that an action may be maintained in the obligee’s name after the assignment. And it is because the statute has given to the assignee of the equitable right a capacity to sue in his own name, that he may sue on his equitable right. If then the assignee has only an equitable right, and the capacity to sue in his own name arises entirely from that equitable right, surely when that equitable right is transferred, the capacity to sue, arising from it, is gone also. And is not that the case here? The assignment by Dunn, if it passed any thing at all, passed his equitable right; and that being passed away, there is nothing to sustain a suit in his own name. Dunn never having had the legal right, and his assignment of his equitable right being valid, his assignee could maintain an action in his own name against the obligor; but while a right of action existed against the obligor on behalf of Dunn’s assignee, it could not exist at the same time on behalf of Dunn himself. It is clear, then, that upon the facts presented by the first plea, no suit could have been maintained by Dunn against Carter. And if the obligor could not have been held liable to an assignee who had assigned away his right, how can the assignor be held liable to such assignee? The assignor is understood to pass to the assignee every right founded on the bond which he himself possesses. And among the rights so passed by an intermediate assignor is his right of action against his own assignor. If indeed, upon the obligor’s proving insolvent, Dunn had made payment to his assignee, then he would have been reinvested with all his original rights on the bond, and would have been entitled to demand payment from mrs. Price, his assignor, in like manner as was done in Goodall v. Stuart, 2 Hen. & Munf. 10S. But until he makes such payment, he cannot sue his assignor, not even for the benefit of his assignee. Tf he could, then the course adopted in Riddle *& Co. v. Mandeville &c., 5 Cranch 322, of a suit in equity by the second assignee, claiming to be substituted in place of the first, was very unnecessary; and the statute of 1807, 1 Rev. Code, ch. 12S, | 6, p. 484, was equally so.
    In the case of the bankruptcy of a person who is beneficially as well as legally interested in the performance of a contract made before the act of bankruptcy, the action should be brought in the name of his assignees. 1 Chitty’s PI. IS, (p. 25 of 7th american edi.). So too the legal interest of an insolvent debtor in a contract is, by the provisions of the insolvent acts of England, vested in the persons to whom his estate is assigned, and they are empowered to sue. 1 Chitty’s PI. 17, (p. 29 of 7th american edi.). Chitty gives forms of pleas of the plaintiff’s bankruptcy; see 3 Chitty’s PI. 919, the form in assumpsit, and p. 971, the form in debt on bond. The same rule exists under the laws of the United States; Richards v. Maryland Insurance Company, 8 Cranch 85. So in Pennsylvania; Cooper &c. v. Henderson, 6 Binn. 189; Kennedy v. Paris &c., 5 Serg. & Rawle 394; Stoever v. Stoever &c., 9 Serg. & Rawle 434.
    If the circuit court was wrong upon the demurrer, still the defendant is entitled to the benefit of the verdict and judgment upon the second count.
    Johnson in reply.
    A verdict is never set-aside in part, and the judgment, if erroneous in part, is to be reversed in toto. It is not shewn, upon the plea of insolvency, that the right of action vested in the sheriff, for the cases of bankruptcy are not analogous. And as to the other plea, there was, before the statute, a right of action for the assignee against his assignor, and this, right did not pass to a second assignee.
    
      
      Bonds. — See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      Assignment. — See monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   TUCKER, P.

This was an action brought in the name of the first as-signee, for the benefit of the last ^assignee, against the first assignor, to recover back the amount paid for a bond, the obligor having proved insolvent. The defendant pleaded the assignment to the last assignee in bar of the action, and the court below sustained the plea. This I think was erroneous.

Before the act of 1807, which gave to the last assignee a right to maintain an action at law against a remote assignor, his. remedy was either in equity (Riddle & Co. v. Mandeville &c., 5 Cranch 322), or he was entitled to institute an action at law for his own benefit, in the name of his assignor, against the remote assignor. 1 T. R. 26, 619; 4 T. R. 340; Garland v. Richeson, 4 Rand. 268. The act of 1807 does not take away or impair that right. It only provides that “hereafter the assignee shall be entitled to recover from any previous assignor or assignors.” It does not follow, because he is entitled to recover in his own name under this statute, that he can no longer sue in the name of his assignor for his own benefit. The case of Garland v. Richeson, 4 Rand. 266, is pregnant with proof that a party may proceed under the statute or as at common law. The argument in that case is a fortiori in this: for although it has been much doubted whether the assignment of a bond did not pass the legal title to it, it cannot be supposed that an assignment can pass a legal title to the implied contract between the assignor and assignee. It is not perceived how such implied contract could be the subject of such legal transfer. The right is, after all, but equitable, though it is authorized by statute to be enforced by action at law. I think, therefore, it is in the election of the last assignee to sue either in his assignor’s name, and for his own benefit, or in his own name under the statute. If he pursues the former course, the court of law will take notice of his equitable right, will permit the action to proceed in the name of the assignor, for his benefit, and will protect it against the interference of the assignor. 4 Rand. 268. *Upon the same principles, it will not permit the assignee’s rights to be defeated by the plea of a title outstanding, not in another, but in himself. In Winch v. Keeley, 1 T. R. 619, the defendant pleaded that the plaintiff was a bankrupt, and that the balance due from him to the plaintiff was payable to his assignees, and so he was not entitled to sue. The plaintiff replied that before his bankruptcy he had transferred this balance to one Searle, and that the suit, though in his name, was for Searle’s benefit. Judgment for the plaintiff: from which it is clear that a court of law will look to the person really entitled in equity to the debt, and will protect his rights accordingly. So too in Bottomley v. Brooke, cited 1 T. R. 621, to debt on bond the defendant pleaded that the bond was given in trust for one E. Chancellor, and that before action brought E. C. was indebted to the defendant more than the amount of the bond. The plaintiff demurred, but withdrew his demurrer by advice of the court. So in Rudge v. Birch, and Webster v. Scales, cited 1 T. R. 622, it was decided that the interest of a trustee did not pass as part of a bankrupt’s effects. All these cases are recognized in Winch v. Keeley, and in Master v. Miller, 4 T. R. 341. According to them, the defendant might have pleaded that the last assignee, for whose use the suit was brought, was indebted to her more than the amount of the plaintiff’s demand; and if so — if she would be entitled to consider him as plaintiff, she ought not to have been permitted to treat him as a third party holding a title adverse to the demand in that action. The plea therefore should have been overruled.

The second plea falls within like objections, and must share the same fate.

Lastly we come to consider what judgment shall be entered. There were two distinct judgments in the court below; the first, for the defendant upon the demurrer, which we deem erroneous; the last, upon a verdict *for the defendant on the trial of the issue on the second count. As to this, there is no error assigned, nor do we perceive any. I am therefore of opinion to affirm the judgment on the second count, and reverse that upon the first count, entering judgment for the plaintiff upon the demurrer, and sending the cause back for a trial upon the plea to that count, and such further proceedings as may be found proper. And this upon the authority of Everard v. Paterson, 6 Taunt. 645; S. C 2 Marsh. 304, and Campbell v. French, 6 T. R. 200.

The following entry was concurred in by all the judges: . ’

“The court is of opinion that the judgment of the circuit court, in so far as it was considered that the second and third pleas of the defendant, pleaded to the first count in the declaration, were good and sufficient in law to bar the plaintiff’s action on the said count, and that the plaintiff take nothing by his first count, but that the defendant go thereof without day; and also in so far as it was considered that the defendant recover against the plaintiff her costs by her about her defence in that behalf expended, and that the said plaintiff take nothing by his bill, but be in mercy &c. is erroneous. And the court is further of opinion that so far as respects the second count in the said declaration, there is no error in the proceedings thereupon, and that the defendant was entitled to her judgment upon the said count, that the plaintiff take nothing by his said count, but without costs. Therefore it is considered by the court that the said judgments be reversed and annulled,” with costs. “And this court proceeding to give such judgment &c. it is considered by the court that the plaintiff take nothing by the second count in his declaration, but that the defendant go thereof without day. And as to the demurrer of *the plaintiff to the defendant’s second and third pleas to the said first count in the declaration, it appears to the court here that the said pleas, and the matters therein contained, are not sufficient in law to bar the plaintiff from having apd maintaining his action against the defendant on his said first count: Therefore it is further considered that the plaintiff’s demurrer to the said pleas be sustained, and that those pleas be overruled. And the cause is remanded to the said circuit court for further proceedings therein upon the issue in fact already made up on the said first count of the declaration, or such other issue or issues as may be made up between the parties, in case the pleadings should be amended by leave of the court, for good cause shewn.”  