Green v. Beatty, Polhemus & Axford

Supreme Court of New Jersey

Green v. Beatty, Polhemus & Axford

1 N.J.L. 165

Supreme Court of New Jersey·Decided November 15, 1792·Published

Opinion

Kinsey, G. J.

Though a bond, on strictly legal principles, is not assignable, yet in equity it is, and courts of law have [167]*167permitted an assignee to sue on a specialty in the name of the assignor, and even to avoid any payment made to the assignor after due notice to the obligor of the assigment.

(a) This has loug been the received law. This is a right and not a favor; and if a right, it follows ex debito justitice that the cestui que trust must be protected against any fraudulent attempts of the trustee, in violation of his duty, to destroy the action.

It has been said there is nothing in the bond, condition, or plea from which the court can infer that Green is a trustee, and that we are not permitted to go out of the record for evidence of the fact. The articles by which this trust was created are, it is true, not on the record, but in a case of [144] this nature, the court feel themselves authorized to examine the question in a broader light, and to receive affidavits to prove the fact. It appears clearly and undeniably that Green was a trustee for the wife, and our opinion is that the release be set aside, and that Green show cause why an attachment should not go against him for this violation of his duty. (b)

Motion granted.

See McCuttum v. Coxe, 1 Dallas 139. Numberless decisions both in England and this country confirm the doctrine laid down in the text. See 1 Bac. Abr. 249, ( Wils. edit.,) where some of the leading cases are collected.

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Kinsey, G. J.

Though a bond, on strictly legal principles, is not assignable, yet in equity it is, and courts of law have [167]*167permitted an assignee to sue on a specialty in the name of the assignor, and even to avoid any payment made to the assignor after due notice to the obligor of the assigment.

(a) This has loug been the received law. This is a right and not a favor; and if a right, it follows ex debito justitice that the cestui que trust must be protected against any fraudulent attempts of the trustee, in violation of his duty, to destroy the action.

It has been said there is nothing in the bond, condition, or plea from which the court can infer that Green is a trustee, and that we are not permitted to go out of the record for evidence of the fact. The articles by which this trust was created are, it is true, not on the record, but in a case of [144] this nature, the court feel themselves authorized to examine the question in a broader light, and to receive affidavits to prove the fact. It appears clearly and undeniably that Green was a trustee for the wife, and our opinion is that the release be set aside, and that Green show cause why an attachment should not go against him for this violation of his duty. (b)

Motion granted.

See McCuttum v. Coxe, 1 Dallas 139. Numberless decisions both in England and this country confirm the doctrine laid down in the text. See 1 Bac. Abr. 249, ( Wils. edit.,) where some of the leading cases are collected.

Green v. Beatty, Polhemus & Axford, 1 N.J.L. 165 (N.J. 1792).

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1 N.J.L. 165 (Green v. Beatty, Polhemus & Axford) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.