Barron v. Porter , 44 Vt. 587 ( 1872 )

Tb» munion of the court was delivered by

J.

The defendant’s counsel insist that their 1st, 3d, 4th .a 5th.. requests ought to have been granted; that the court charged to the contrary, and that in this there was error. It is settled by the decisions in this State, that the notice to the debtor of the assignment of a demand must emanate from and be given by the procurement of the assignee, in order to be effectual to protect the demand from attachment by trustree process as the property of the assignor. But it is not necessary to the validity of the notice that the assignee should personally give the notice, or that the agent of the assignee for giving notice directly employed by him for that purpose should himself personally give the notice ; if given by his procurement, it is sufficient. So far, therefore, as these requests require a charge that the notice must have been given by the plaintiff personally, or personally by Tasker, the person employed by the plaintiff to give it, they were properly refused, provided there was evidence in the case which would warrant the jury in finding legal notice otherwise ; and so far as these requests require the court to charge that the notice must come from the plaintiff by means instituted by him for that purpose, they were complied with. The question, then, arises upon the theory of the evidence that Tasker did not see the defendant, and upon what took place in the house while Tasker was there, and immediately after he left, when the defendant came in and was informed of what had transpired, whether that in connection with the other evidence bearing on the point was sufficient to justify the jury in finding legal notice, and whether it was submitted to the jury under proper instructions. We think, notwithstanding the mistake under which Tasker upon this hypothesis of the facts acted, that what the jury must have found under the charge answers all the purposes for which notice in such cases is required, and that it is legal and sufficient notice. The requirement of notice is to prevent fraud, not to enable parties to perpetrate it.

Judgment affirmed.'