
    Greenleaf Wood vs. Chandler Decoster et al.
    
    Oxford,
    1876.
    February 25, 1877.
    
      Debt. Demurrer.
    
    The assignee of a judgment for debt and cost may maintain an action of debt tbereon in Ms own name, under and by virtue of tbe statute of 1874, c. 235.
    Tbe statute of 1876, expressly conferring tbis right, does not affect tbe right, previously existing under tbe statute of 1874.
    Nor is tbe right confined to tbe immediate assignee of tbe judgment creditor; tbe remedy is available to any subsequent assignee who can show a good title.
    Upon demurrer to a declaration alleging tbe sale, transfer, and assignment, tbe imesumption is, that the assignment is valid under tbe statute; and if tbe defendant would contest its validity or sufficiency, be must do it by plea or brief statement.
    Neither that question nor any alleged failure to file tbe assignment with tbe writ in conformity with tbe requirements of tbe statute, is open to him on demurrer.
    Where one of two co-defendants demur, and tbe allegations in tbe declaration are, as to him, specific and sufficient, tbe want of a precise and formal allegation as to bis co-defendant, will not suffice to sustain bis demurrer.
    Nor will erroneous mention, in some parts of tbe declaration, of tbe defendants as singular, when they are in fact plural, or of tbe plaintiff as plural, when there is but one, suffice to defeat tbe action, if upon tbe declaration as a whole, tbe persons and case can be rightly understood.
    ON exceptions to tbe overruling of a general demurrer to tbe declaration.
    Debt on a judgment of tbis court in Oxford county, recovered at the March term, 1867, in favor of Sullivan 0. Andrews against these two' defendants, brought in the name of the plaintiff as assignee of one Bisbee, who was the assignee of Andrews, alleging assignments, but not alleging that the assignments were in writing, and no copy of assignment being filed with the writ. The declaration closed as follows ; “Whereby an action hath accrued to the plaintiff, to have and recover of the said Chandler Decoster, (omitting the name of the defendant, Addison Gr. Wood,) the sums, [&c.] Tet the said defendant (singular,) has not paid and doth wholly refuse,” [&c.] “To the damage of the plaintiffs.”
    To the foregoing, the following demurrer was filed: (After stating the termGfreenleaf Wood v. Chandler Decoster, (omitting the name of Wood.) And now tbe defendant comes and defends, &e., when, &e., and says that the plaintiff’s declaration is insufficient in law.” The demurrer was joined and the declaration adjudged good; and the defendant alleged exceptions.
    
      G. A. Wilson, for the defendants,
    to the point that such action brought in the name of an assignee, could not be sustained at common law, cited Skinner v. Somes, 14 Mass. 107. To the point that by legislative construction, “judgments” were not included under the term “dioses in action,” upon which, under the statute of 1874, c. 235, assignees may maintain actions in their own names, he cited the statute of 1876, c. 102, § 2, which extends the statute of 1874, so as to embrace judgments.
    If the law court should hold that an action could be sustained under c. 235, in the name of the assignee of a judgment, he then urged that the writ was defective in not declaring the assignment of the judgment to have been in writing, and in not having a copy of the judgment filed with it, as required by the statute. Drowne v. Stimpson, 2 Mass. 441, 444. Soper v. Harvard College, 1 Pick. 177. William,s v. Hingham da Quincy Bridge, 4 Pick. 341.
    
      G. D. Bisbee, for the plaintiff.
   Barrows, J.

The demurrer presents the naked question of the sufficiency of the declaration in a writ in which Decoster and another are named as defendants. The declaration is in a plea of debt, and sets out in the usual form that one Andrews at the March term, 1867, recovered a judgment for debt and costs against the defendants, and that said Andrews, on April 10, 1875, for a valuable consideration, “did transfer, sell, and assign” the same to one Bisbee, and that said Bisbee on June 1, 1875, for a like consideration paid by the plaintiff, did transfer, sell and assign the same to him. It avers that said judgment is in full force, &c., “whereby an action hath accrued to the plaintiff to have and recover of the said Chandler Decoster the said several sums,” &c., “yet the said defendant has not paid the same,” and it concludes with the ordinary averments of request and neglect and refusal by both- defendants, “to the damage of said plaintiffs.” Decoster alone demurs generally.

Though Dot a model of careful pleading, we think the persons and case can be rightly understood, and that the declaration was. correctly adjudged good on demurrer.

Chapter 235, of the laws of 1874, runs thus: “Assignees of choses in action, not negotiable, assigned in writing, are hereby authorized to bring and maintain actions in their own name, and the assignee shall hold the assignor harmless of costs, and shall file with his writ the assignment or a copy thereof, and all rights of set-off shall be preserved to the defendant.”

In support of the demurrer it is claimed that a judgment is not properly speaking, a chose in action, and therefore this statute is not applicable, and the laws of 1876, c. 102, § 2, by which an action of debt is expressly given to the assignee of a judgment which has been assigned in writing, and is not discharged, is cited to show that in the opinion of the legislature no such action could be previously maintained. But the construction 'of the law of 1874, is not affected by the later statute. Instances are not wanting in which the legislature, designing to make the law more explicit, have enacted statutes which are found to be only declaratory of the law as it previously existed. It may be that here the statute of 1876 extends an assignee’s remedy to judgments upon which execution might issue. But the question is, what is the true construction of the law of 1874? Chancellor Kent defines choses in action as “personal rights not reduced to possession, but recoverable by a suit at law.” 2 Kent’s Com., part V., p. 351.

There can be no doubt that a judgment which has remained unsatisfied from 1867, to 1875, and upon which apparently no execution could now issue, and which must be collected, if at all, by a new suit, comes strictly within this definition. Inasmuch as the execution is one step in a suit at law, necessary to the enforcement of the creditor’s rights, it might well be said that a judgment upon which execution could issue, falls within the same category.

Kent and all standard writers on elementary law include under the general head of things in action, “money due on bond, note, or other contract.” A debt of record constitutes a contract of the highest nature, being established by the sentence of a court of judicature. 2 Black. Com., c. 30, p. 465. There can be no question that the statute of 1874, authorized the assignee of a judgment like this to maintain a suit thereon in his own name. Nor do wo think that this right is confined to the first assignee. The remedy is available to any subsequent assignee who can show a good title from the judgment creditor.

The demurrer admits the assignment; and the presumption is, that it is a valid assignment. If the defendant would have questioned its validity or sufficiency, he should have done so by plea or brief statement. Lawrence v. Chase, 54 Maine, 196, 199.

While it would have obviously been the better practice for the plaintiff to set out his title and the mode of transfer more fully, wo do not think that the failure to do so can be regarded as fatal under the pleadings. The same must be said of any alleged failure to file the assignment with the writ, according to the requirement of the statute.

As against this defendant, Decoster, the right to maintain the action is specifically alleged. The other defendant, not appearing, can never be heard in error to allege any want of form. Page v. Danforth, 53 Maine, 174. The defeet as to him, cannot avail this defendant. Had there been an absolute non-joinder, it would have been good only in abatement. There seems to have been some confusion in the pleader’s mind as to the respective number of the parties plaintiff and defendant; but for reasons before alluded to, we see nothing that can be regarded as fatal on demurrer. Exceptions overruled.

Appleton, O. J., Dickerson, Danforts, Yirgin and Libbey, J J., concurred.  