Southern Life Insurance v. Davis , 1845 N.Y. LEXIS 506 ( 1845 )

The Vice-Chancellor :

The fact tendered for an issue on this plea is, that the complainants Joseph and Lawrence O. B. Branch are not the assignees of all or any of the property and effects of the Southern Life Insurance and Trust Company as claimed in the bill of complaint, &c.

This plea goes to displace their right to sué—divesting them of all title under the assignment alleged in the bill— and showing that, at least, there is a misjoinder of complainants. If, in point of fact, these two complainants are not assignees, the effect of it is to abate the suit and either to put the bill out of court or to drive the other complainants to amend before this defendant can be called on to answer it.

With respect to the form of the plea, several objections are taken—none of which, however, seem to me to be tenable. After stating the fact that these two complainants are not assignees, as they claim to be, the plea goes on to state why and wherefore they are not and the means by which their assigneeship has been lost or taken from them. This is not duplicity in pleading. All the facts stated tend to but one point: that they are not assignees. If a replication is filed, that will be the issue. The judicial proceedings and decree alleged to have been made will be given in evidence in support of the plea ; and the complainants will be at liberty to show that the court, making that decree, had not acquired jurisdiction over these complainants or, for some other reason, was not competent to make such a decree or that the decree is not final or has been reversed or set aside or is not in full force; and if any of these facts appear, the plea will be falsified. Hence, it appears to me that the plea is sufficiently full and explicit to raise the issue that is to be tried and to let in the evidence by which the fact of the complainants being assignees or not is to be determined.

I grant that if the defendant had nakedly pleaded the sentence or decree of the Florida Court, setting aside the assignment and placing a receiver in possession of the assigned property, the plea might have been deemed defective in not averring something more : as, for instance, that the decree remained in full force, unreversed, &c. But, as the plea avers, distinctly, that these complainants are not the assignees, &c. thus negativing an allegation in the bill and denying the title or right of these two persons to become complainants—(and a pure negative plea may be pleaded)— it carries with it, most strongly, the implication that the decree remains in full force and has not been overturned.

On the whole, I consider that the plea is sufficient, both in form and substance. It must be allowed, with costs ; and, on payment of such costs, the complainants may have leave to amend the bill by striking out the names of the Messrs. Branch as complainants.

Order entered:—It is ordered that the said plea be and the same is hereby allowed-with costs to the said Thomas y Davis to be-taxed, with liberty to the complainants The Southern Life Insurance and Trust Company to amend the said bill by striking out the names of Joseph Branch and Lawrence O. B. Branch as co-complainants, if they shall be advised so to do within twenty days after notice of this order, on payment of the said costs or if the said The Southern Life Insurance and Trust Company shall not elect so to amend, then, that the said complainants have leave to reply to the said plea and take issue thereupon within the same twenty days after notice of this order on payment of the said costs. And it is further ordered that in default of the said The Southern Life Insurance and Trust Company so amending the said bill or the said complainants replying to the said plea and taking issue thereupon as aforesaid, that the said bill of complaint be and the same is hereby dismissed as to the said Thomas E. Davis, with costs to be taxed.