Johnson v. Thayer , 17 Me. 401 ( 1840 )

The opinion of the Court was by

Siiepeey J.

An order drawn by a creditor upon his debtor in favor of a third person and accepted, may operate as a valid assignment of the debt, although it be not negotiable or expressed to be for value received. Adams v. Robinson, 1 Pick. 460; Legro v. Staples, 16 Maine R. 252.

The person summoned as trustee in this case was obliged by his acceptance to pay to Charles Thayer the debt due to the defendant; and he should be protected against a liability to him and a payment to the plaintiff, unless he has disclosed facts, which authorize the court to decide, that the assignment is inoperative.

The defendant procured the order to be accepted, payable to his minor son, slating that he wished to avoid the effect of a trustee process; and he afterwards presented it and received a payment upon it.

These facts may justly create a strong suspicion, that the assignment was without consideration, fraudulent and void. But .while these facts are admitted, it may bo true, that it was made in good faith and for a valuable consideration. If the plaintiff had made the objection permitted by tbe statute, c. 61, <§> 7, it is possible, that tbe assignee, though a minor, might have proved, that he paid a valuable consideration, and that the father acted as his agent in procuring the acceptance and the payment afterwards made upon it. He would not be bound by any declarations of the father with which he was not connected. However improbable, judging from the present state of the case, it may be, yet when the court perceives, that it is possible, that the assigment might, on trial before a jury be proved to be legal and operative", it cannot decide it to be fraudulent. The presumption of law is in its favor, and it must be proved to have been fraudulently made before the court can be authorized to decide against it.

The argument for the plaintiff suggests, that the assignee may ijow be summoned, and may become a party for the purpqse of trying thje yalidity of the assignment. He is not obliged to appear fpr the purpose of protecting his rights unless he is summoned. The plaintiff has made no such objection as the statute requires to enable the court to present the case to a jury for decision. It was the design of the statute to permit the plaintiff to put the validity qf the assignment in issue before the case was presented to the court for its final decision, and not afterwards. It is too late to present that question after the case has been argued and .presented for a final decision upon the disclosure alqne.

Trustee discharged.