Whitten v. Little

1 Georgia Decisions 99

• Court: Hancock County Superior Court, Ga.
• Decided: January 13, 1843
• Status: Published

Opinion

The Court is of opinion, that it is now too late to discuss the question, whether the common law, as well as the equity, Courts, will protect the rights of an assignee of a chose in action. But in protecting his rights, it will be under the same rules, as have been adopted by the Courts of Equity, from imitation of whose practice, they have assumed the power, of noticing and protecting the rights of assignees of choscs in action. According to the rules of equity, the assignee takes the chose in action, subject to all the subsisting equities, between the debtor and the assignor. If the debtor pays the debt to the assignee, after the assignment, and without notice thereof, it will be a good discharge of the debt. — --Meghan vs. Mills, 9 J. R. 64.

So, if the assignee, in any case, by failing to give notice to the debtor, put it in the power of the assignor to commit a fraud upon others, either by a subsequent assignment, or by a reception of the debt, from the debtor, he must suffer by such neglect. It would be inequitable, that the debtor, or other innocent assignees, should lose. by the neglect or fraud of the, assignee.-2 Simons, 257 ; 5 Simons, 195; 3 Russell, 1; 9 John. R. 64.

So, on the other hand, if the debtor should, after notice of the asssignment, or even, of such facts as should put him on his guard, pay the debt to the assignor; it shall be considered fraudulent, as against the assignee, and he will have to pay the debt again, to him. — 12 John. 11. 343.

Laying out of the question whether the under standing of Whitten was not enough to put him on his guard, against paying the note to Workman, and whether, if such payment had been made, after what he had understood, about the assignment of the note, to Hunt; we will proceed to examine, whether any notice, before the garnishment was levied, was necessary, to defeat its lien, as against the assignment. Indeed, Whitten has, very properly, been put on his guard ; so much so, that he refused to pay the money to Workman, unless authorized by the judgment of the Court.

The Court is of opinion, that the assignment, if made before the levying of the garnishment, is good, though notice may not have been given, until afterwards. The assignment was, certainly, effective and operative, as between Workman and Hunt, on the day that it was made; and should not, in equity, be defeated, unless some innocent person has been made to suffer, for the want of such notice. The plaintiff (Little) has not, in any manner, been injured, because Whitten was not notified of such assignment, before he (Little) served his summons of garnishment. Wheth ;r such notice was given before, or after, the levy, could have made no difference, with him. If Whitten had paid the note to Workman, before notice of the assignment to Hunt; it would be a fraud on him, if he should be compelled to pay it again, to Hunt. Or, if some other innocent person had been about taking an assignment of the same debt, from Workman, and had applied to Whitten, to know, if it was due to him. (Workman): then, according to the cases reported in Simons and Russell, above cited, if he, Whitten, not having had notice of the assignment, had answered in the affirmative, and such innocent, person had, in consequence, taken a second assignment; it would bo «-qinfable that Hunt should be postponed, to such innocent assignee, because, by his neglect, the second assignee had been induced to take the last assignment. The plaintiff, Litttle, can have no right to stand in a better situation, or have other rights, than those of his debtor, Workman, who had none, to the note of Whitten, after the assignment.

Sanfobd, for Plaintiff in Certiorari, Sayke, for Defendant.

That the assignment is good, if made before the levy of the garnishment, though 2io notice may have been given, prior thereto, was fully sustained, in the cases of Wakefield vs. Martin and Trustees, 3 Mass. R. 558; Dix, et al. vs. Cobb and Trustees, 4 Mass. 508.

The Certiorari is sustained, and a new trial ordered.