Wiggin v. American Insurance

35 Mass. 158

• Court: Massachusetts Supreme Judicial Court
• Decided: March 13, 1837
• Status: Published

Opinion

Per Curiam,

*

Generally, in the case of an assignment of a chose in action, a new demand against the assignor, arising after notice of the assignment has been given to the debtor, cannot be set up against the assignee. But in this case the defendants assented to the transfer of the policy only upon a reservation of “their rights expressed in the policy.” They wanted security as well for future, as for present claims against Barrett & Brown. The terms of the reservation are general; the plaintiff took the assignment subject to them ; and he cannot avoid their operation except by proving fraud. He stands as Barrett & Brown would have done had there been no assignment, and as against them the defendants would have had a right to deduct from the loss the sums due on all the premium notes and on the bottomry bond.

The plaintiff argues, in respect to the bond, that the defendants have a right of action against Dorr, the surety ; that if the sum due on it shall be deducted from the loss on this policy, the plaintiff will stand in their place and be entitled to recover the same sum from Dorr ; and that, therefore, in order to avoid circuity of action, the deduction ought not to be permitted. But this ground is untenable, for the plaintiff could not sue Burr in an action at law on the principle of substitution ; which is a doctrine of a court of equity. The defendants may lawfully say that they will not stand between the plaintiff and Dorr, but will assert their rights against the plaintiff.

Shaw C. J. did not sit in tills case.