
    Benjamin D. Anderson vs. Ebenezer Miller and Charles Anderson.
    The transfer of an attorney’s receipt for a claim-in his hands for collection, vests in the assignee an equitable right to the proceeds of the claim.
    Where an instrument not assignable is sued on, in the name of one for the use of another, the nominal plaintiff cannot discharge or release the action; courts of law will protect the equitable right of the assignee, by compelling the nominal plaintiff to permit his name to be used for the recovery of the claim. All the nominal plaintiff can require is indemnity against costs.
    
      A. purchaser at a sale, made by an assignee in bankruptcy, of the bankrupt’s effects, acquires only such title as the bankrupt had at the time of his discharge. Where, therefore, a bankrupt, before he filed his petition in bankruptcy, assigned a claim due to him, which was then in the hands of his. attorney for collection, and the debtor was duly notified of the transfer; and the claim was, notwithstanding the transfer, included in the schedule of the bankrupt, and sold by his assignee in bankruptcy, and afterwards paid by. the debtor to the purchaser at the assignée’s sale: Held, that it was improper in the debtor to pay the purchaser at the assignee’s sale, and the payment-was no discharge of the. debt.
    Error from the circuit court of Pontotoc county • Hon. Nathaniel S. Price, judge.
    The record in this case discloses the following facts, to wit: That on the 16th day of September, 1844, Benjamin D. Anderson filed in the office of the clerk of the circuit court of Pon-totoc county a petition, stating that on the 17th day of November, 1841, one Ebenezer Miller recovered a judgment against him in the circuit court of that county for $218 18 damages, besides costs; that an execution was issued on that judgment, levied and bonded, and the bond forfeited, and another execution issued on the forfeited bond, which was then in the hands of the sheriff of Pontotoc county ; that on the 1st day of July, 1842, Miller was declared a bankrupt, rendered a schedule of his assets, including' the judgment against the petitioner, and on the 24th day of October, 1842, he was finally discharged from all his debts under the general bankrupt act of the United States; that John C. Carter was appointed assignee of the assets of Miller, and by virtue of such appointment assumed full control over the judgment and execution against the petitioner, and on the first day of April, 1844, sold and transferred the same to William II. Mosely, and gave him a certificate thereof; that on the 29th day of August, 1844, petitioner obtained from Mosely a full acquittance and discharge of and from the judgment and execution, which was made exhibit A to the petition; and on the 30th day of August, 1844, he paid to the sheriff the costs in full due on the execution; that petitioner exhibits to the sheriff the certificate of purchase obtained by Mosely from Carter, the assignee of Miller, and the receipt from Mosely to him, and required the sheriff to return the execution satisfied, which the sheriff wholly refused to do, and was then proceeding to collect the money. The petitioner prayed for a supersedeas, and that the execution should be entered satisfied at the return term of the circuit court. Upon this petition a writ of supersedeas was granted by the Hon. James M. Howrey. At the return term leave was given to Charles Anderson to interplead, and he filed an answer to the petition, stating that on the 10th day of December, 1839, Ebenezer Miller, being indebted to him, gave him an order on H. R. Miller, the attorney of Ebenezer Miller, who then held for collection the claim against Benjamin D. Anderson, referred to in the petition, requiring H. R. Miller to pay him out of the proceeds of that claim, when collected, the sum of one hundred dollars, which order was accepted by H. R. Miller on the 21st day of January, 1840, payable when the money was collected. And he received the order of Ebenezer Miller in part payment of the sum due by Miller to him, and he made the order an exhibit to the answer; that afterwards Ebenezer Miller became further indebted to him, and for the purpose of securing such further indebtedness, together with the hundred dollars for which the above-mentioned order was given, Ebenezer Miller, on the 16th day of February, 1840, transferred to him the receipt of H. R. Miller .for the claim against Benjamin D. Anderson, on which the judgment referred to in the petition was recorded, and he filed the receipt as an exhibit to the answer; that he, soon after the transfer, informed the attorney of the fact, and that he also informed Benjamin D. Anderson that the receipt had been transferred to him, and he was entitled to receive the proceeds of the claim, long before the alleged bankruptcy of Ebenezer Miller, and that Benjamin D. Anderson promised to pay him the amount, but failed to do so, and thus two or three terms of the court were permitted to pass before suit was instituted. He further staled that the whole amount due from Ebenezer Miller to him was unpaid, and if anything was collected of Benjamin D. Anderson over and above the amount due him; that he would assert no claim to the excess; he insisted that he was the owner of the claim against Benjamin D. Anderson before Ebenezer Miller filed his petition in bankruptcy, and that he was still entitled to his execution against Anderson. On the 18th day of September, 1845, the case was tried before a jury, who returned a verdict against the supersedeas, upon which the court entered judgment dismissing the supersedeas. The petitioner then moved the court to set aside the verdict of the jury because it was contrary to law and evidence, which motion was overruled by the court, and the petitioner filed a bill of exception, from which it appears that on the trial before the jury, the counsel of Charles Anderson, after admitting all the statements contained in the petition, read to the jury the order and receipt filed as exhibits to the answer of Charles Anderson, and then introduced H. R. Miller, who testified that very soon after he accepted the order for one hundred dollars in favor of Charles Anderson, he informed Benjamin. D. Anderson that the order had been drawn by Ebenezer Miller on and accepted by him; that some time thereafter, ho believed about the 16th day of February, 1840, Charles Anderson informed him that Ebenezer Miller had transferred to him, Anderson, and he was then the holder of witness’s receipt given for the claim against Benjamin D. Anderson, when it was left with him for collection, and that he, witness, mentioned the fact to Benjamin D. Anderson, the first time he met him after that time, all of which occurred long before Ebenezer Miller was declared a bankrupt. Henry Duke also proved that he informed Benjamin D. Anderson that Ebenezer Miller had transferred to Charles Anderson, H. R. Miller’s receipt for the claim against him, and that Benjamin D. Anderson said he did not know Charles Anderson in the transaction. Which was all the evidence offered on either side.
    Benjamin D. Anderson now prosecutes this writ of error.
    
      D. C. Glenn, for plaintiff in error.
    The first point presented by the record is this: Under the rules of law as applied to the transactions of bankrupts, would this transfer be valid? Upon the eve of bankruptcy Miller assigns to a creditor a valuable portion of his assets. This was in direct opposition to the meaning and spirit of the bankrupt law.
    2. The defendant in error has no peculiar claims on the court ; he voluntarily placed himself in the position he occupies; he has paid out no money; he has only attempted to strengthen his claim and took a collateral for a preexisting debt. He has lost nothing and is in the same position he was in before he took this security, for he has not receipted or entered satisfaction upon his antecedent judgment.
    3. We have come fairly into possession of our rights; not by collusion with Miller, but by a fair and bona fide purchase. It is not alleged that the purchaser at the assignee’s sale ever had any notice of any outstanding equity existing against this judgment. We are invested with all his rights and clothed with all his privileges. A purchaser from him without notice, we can and do claim the rights of a purchaser for valuable consideration without notice also.
    4. Charles Anderson claims as assignee of this judgment to enforce it in his own name. Under the decision of this court ('Wilson v. McElroy, 2 S. & M. 250, and cases cited,) can this-be done by him in the mode adopted in this case ?
   Mr. Justice Clayton

delivered the opinion of the court.

Upon the facts contained in the record, this judgment must be affirmed.

By the transfer of the attorney’s receipt to him, Charles Anderson became in equity entitled to the proceeds of the judgment. The notice of the transfer, made it improper in B. D. Anderson, the defendant in the judgment, to pay to any one else but C. Anderson or his order. This transfer took place in February, 1840, nearly two years before the bankruptcy of Miller, and more than twelve months before the passage of the bankrupt act, which was in August, 1841. After this transfer Miller was but a mere naked trustee, having no right to the judgment in himself. It ought not to have been embraced in his schedule, rendered to the court of bankruptcy. It does not appear that Charles Anderson was a party to the proceedings in bankruptcy, and unless he were, his interest could not be affected by them. It is not shown that he was then a creditor of Miller. The assignee in bankruptcy took precisely the place of Miller, and was in no better condition in regard to his effects. The purchaser at the sale of the assignee occupied the same position. Now as between Miller and Charles Anderson, after the transfer, and before the bankruptcy, it is not possible to doubt the preference of Anderson to the proceeds of. the judgment; it cannot be different as to the assignee of Miller.

The transfer of the attorney’s receipt, vested an equitable right to the proceeds of the judgment, in Charles Anderson. Fitch v. Stamps, 6 How. 487; Roberts v. Bean, 5 S. & M. 590. Can this right be enforced' in the court of law 1 When an instrument not assignable is sued on, in the name of one for the use of another, the nominal plaintiff, cannot discharge or release the action. The courts of law will protect the equitable right to this extent, and will compel the nominal plaintiff to permit his name to be used for the recovery of the claim. All he can require is indemnity against costs. Welch v. Mandeville, 1 Wheat. R. 236, note. There is nothing in the case cited, of Wilson v. McElroy, 2 S. & M. 241, that conflicts with this.

This principle protects Charles Anderson, and gives him right to the use of Miller’s name, or that of his assiguee, to coerce ' payment of the judgment. The payment to Mosely was, under the circumstances, no discharge.

Judgment affirmed.  