Corbin v. Emmerson

10 Va. 663

• Court: Supreme Court of Virginia
• Decided: March 15, 1840
• Status: Published

Opinion

Scott, J.

delivered the opinion of the court—That in every case of a bill in equity asking relief for the plaintiff as assignee of the rights of another, the assignor must be made a party to the cause, and the assignment ought to be shewn and proved, though the fact be not denied, nor proof of it called for, in the answers. The production and proof of the assignment ean only be dispensed with by an admission of the fact by both the assignor and the parties against whom the relief is asked. Much more were the production and proof of the alleged assignment indispensable in this case, in which the assignor and his administrator, if the cause was regularly matured for hearing as to either of them at all, were in default; so that it cannot be pretended, that they or either of them admitted the assignment. This objection is fatal to the decree, upon the record as it now stands. But if this were the only error in the decree, the court, reversing it for this error, might remand the cause to the court of chancery, where the plaintiff might have an opportunity of producing and proving the assignment. The court has, therefore, examined the case upon the merits. And upon a view of all the circumstances of the case proved by the evidence, we are of opinion, that Bacon Burwell, at the time of the division between him and Corbin as legatees in 1818, waived, and intended to waive and abandon, all further claim against Corbin as administrator of his testator, on account of the legacy bequeathed to him, and especially all claim for an account of the profits of the slaves; and that, therefore, Burwell, if he had filed this bill himself preferring the claim on his own behalf, would not have been entitled to relief. Of course, the plaintiff, his assignee, is entitled to none. Therefore, the decree is to be reversed with costs, and the bill dismissed.

Decree reversed.