Langley v. Berry

14 N.H. 82

Opinion

W oods, J.

Upon the facts disclosed by the trustee, he is clearly chargeable for the sum of $30,00, being the amount of his indebtedness to the principal defendant at the date of this action, as admitted by the trustee.

The fact relied upon for his discharge cannot avail. The mere promise alone of the trustee to pay to Samuel Berry such sum as should be found due from him to Stephen F. Berry, cannot constitute a sufficient ground of discharge. In order to that result, it is necessary that it should appear that the promise was made upon an adequate consideration. The payee is to be regarded merely as an assignee of a chose in action. The obvious intent and effect of the instrument ia question was, to transfer and assign to Samuel Berry the sum of said indebtedness of the trustee to Stephen F. Berry; at least, his case is not to be regarded as standing on higher ground, or as giving greater rights to Samuel Berry, than would an assignment of the debt in the usual form. And in such case it is well settled, that, in order to entitle the assignee to the claim assigned as against the creditors of the principal debtor, it must be made to appear that the assignment is not merely good in form, but bona fide, and upon adequate consideration. (Giddings vs. Coleman and Trustee, 12 N. H. Rep. 153.) And neither of those facts appears in the present case. It is true, that the promise purports to rest upon a valuable consideration, but that is not sufficient. It must be shown aliunde that it is so in point of fact.

Judgment for the plaintiff.