Black v. Everett , 5 Stew. & P. 60 ( 1833 )

TAYLOR, J.

The defendant in error has raised the preliminary point, that the action could not be sustained by the administrator of Greenlee, after the interest in the original judgment had been assigned to the Crowells.

It is a sufficient answer, that neither the common or statutory law recognises the assignment of a judgment : such assignment passes only an equitable interest, and does not authorise a suit at law, in the name of the assignee. The right of action, therefore, after the death of Greenlee, was in his representative only.

The question made by the assignment of error, is, the overruling the demurrer to the second plea.

It is believed by this Court that this plea avers' no issuable fact. The allegation that the defendant wa’s always ready and willing to settle and liquidate the judgment, was not an averment which could be replied to — if true, it formed nomatter of defence: and the same may be said of the allegation, that the Crowells had failed to ascertain and credit the amount of the sums collected under the first agreement, and to prosecute for losses sustained by negligence, '&o. There is no averment, nor does it appear by the plea that any amount had been collected, or lost by negligence. It may be, that the Crowells’ insist, and the fact is so, that no money has been collected on the notes placed in the hands of Greenlee, by the defendant, as collateral security, nor any loss sustained by negligence-in the prosecution of those claims. They may all have proved unavailing to Greenlee, and the Crowells.

But what is the effect of these agreements between Greenlee and the defendant, and the Crowells and the defendant'? Can they be set up as a defence in this suit 1 I conceive not. If the Crowells have failed to discharge any of the duties which devolved upon them by their covenants, they may be sued bv the defendant, and damages recovered for this breach: but I can not think their failure to prosecute those who have been negligent, and thereby suffered losses to be sustained, can be set up by plea, and investigated in this action. The defendant would certainly be permitted to prove, under the plea of payment, the receipt of any sums of money by Greenlee or Crowell upon the notes, and obtain a credit for them, but he can not defeat the action by a mere allegation that the amount collected on the notes, and lost hy negligence, has not been credited Oil the judgment sued on, when it does not appear that any thing has been thus collected or lost.

The agreement between the!Crowells and the defendant, entirely superseded the former one between Greenlee and defendant. The latter, if it had never been varied, might have’ been pleaded as a defence, and the defendant would have been entitled to a credit under it for the amount of the notes specified in the list, except such as the plaintiff would have shewn had been unavailing, although the makers had been, prosecuted to insolvency.

The contract with the Crowells, however, is of a very different nature. By that, the defendant agreed that the judgment should be credited by the amount which had been collected upoh the notes placed in the hands of Greenlee; and there is a distinct and seperate undertaking, on the part of the Crowells, that they will “ pursue all legal means to recover all such sums as may have become insolvent, or lost for want of proper management on the part of the at* torneys employed by Greenlee. ”

This agreement no where on the face of it, shows that any moneys had been collected on the note; or by prosecuting attorneys for negligence, nor is there any thing in the record, by way of averments in the pleadings or otherwise, to show this fact. As before observed, the defendant is certainly entitled to a credit for any moneys which, under a proper state of pleadings, he may prove to have been received on the notes by Greenlee or the Crowells, or which the latter may have recovered for losses on account of negligence of attorneys, &c. but it cannot be introduced as a defence to this action, that the Crow-ells have failed to prosecute thoes guilty of negligence. It is not necessary, however, to go this far, because it is no where averred by the defendant that any such losses have been sustained.

The Circuit Court erred in overruling the demurrer of the plaintiffs to the defendant’s second plea, for which reason, the judgment must be reversed, and the cause remanded.