#### Tucker v. Daly, Assignee.

April Term, 1851,

Richmond.

(Absent Cabell, P., and Allen, J.)

Bonds—Assignment*—Case at Bar.—Y agrees with D to assign to D a bond held by Y, to indemnify D for becoming his surety; but the bond not being present, is not then delivered to D. Afterwards Y commits an act of bankruptcy, upon which he is duly declared a bankrupt. After committing the act of bankruptcy, Y writes upon the bond an assignment of it to D, and delivers it to D, who collects the money from the obligor. Held: D is entitled to hold the money as against the general assignee of the bankrupt.

This was an action of assumpsit, brought in the Circuit court of Mecklenburg county by J. J. Daly, assignee of J. Murray Yates, a bankrupt, against Henry Tucker. On the trial the jury found a special verdict, which set out the following facts, viz;

That the defendant received from John G. Oliver the sum of 470 dollars 86 cents, that being the amount of a bond executed by Oliver to J. Murray Yates. That on the 17th of December 1841, the defendant became the surety of Yates in a bond to E. James & Co. for *the sum of 222 dollars 78 cents, in consideration of the promise of Yates to assign to him the bond aforesaid, and other papers, to indemnify him for thus becoming his surety, and for previous liabilities of the defendant as surety for Yates. That the bond of Oliver was not then delivered to the defendant, it not being then present; but was retained by Yates, and remained in his possession until after the 30th of May 1842. That Yates on the 4th of May 1842, committed an act of bankruptcy, upon which he was thereafter duly declared a bankrupt; and the plaintiff was appointed his assignee in bankruptcy. That after this act of bankruptcy, Yates wrote an assignment on the bond of Oliver to the defendant; and after the 30th of May 1842, for the first time delivered the bond to the defendant.

On this special verdict the Court rendered a judgment in favour of the plaintiff for 470 dollars 86 cents, with interest from the 21st *141October 1843 till paid, and his costs. Whereupon the defendant applied to this Court for a supersedeas, which was granted.

Stanard and Bouldin, for the appellant,

admitted that the judgment was in accordance with the decisions in England; but they insisted that the English decisions were founded upon a provision of the English statute to which there was no similar provision in the act of Congress: and that in cases not coming within that provision, the English decisions were opposed to the judgment in this case. They referred to Mogg v. Baker, 3 Mees. & Welsb. 194; Winsor v. M’Bellan, 2 Story’s R. 492; Mitchell v. Winslow, Id. 630; Winsor v. Kendall, 3 Id. 507.

J. Alfred Jones, for the appellee, insisted,

that the agreement between the appellee and Yates, did not constitute such an equitable assignment of the bond as was protected by the act of Congress. He referred to *Eoster v. Howell, 4 Mass. R. 308; Anderson v. Temple, 4 Burr. R. 2235; Hague v. Rolleston, Id. 2174.

*

See monographic *note*on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. *409.*

D ANTEE, J.,

delivered the opinion of the Court.

This Court is of opinion, that by virtue of the agreement between the plaintiff in error and John Murray Yates, and the conduct of the said parties in reference thereto, set forth in the special verdict, the plaintiff in error acquired a right to have an assignment of the bond of Oliver, and a lien upon its avails, which a Court of equity would, as between the parties, have respected and enforced: That whilst, by the third section of the act of Congress, entitled “an act to establish a uniform system of bankruptcy throughout the United States,” approved the 19th August 1841, the defendant in error, was, under the decree of bankruptcy in said verdict mentioned, vested with all the property and rights of property of the said Yates; yet, that by a just construction of said section, he took said property and rights of property subject to all the equities which had attached thereto prior to the act of bankruptcy on which the decree aforesaid was founded ; and by the express terms of the proviso of the second section of the act aforesaid, of the 19th August 1841, held the same subject to all liens, mortgages and securities which were valid by the laws of this State, and which were not inconsistent with the provisions of said act.

The special verdict does not disclose the pecuniary condition of the said Yates at the time the agreement before mentioned was made, nor does it find any facts or circumstances that would justify this Court in inferring that the said agreement was made in contemplation of bankruptcy, or that the conduct of the parties to it was in any respect inconsistent with the provisions and requirements of the said act of Congress.

*The Court is also further of opinion, that notwithstanding the act of bankruptcy committed by Yates, and the decree of bankruptcy consequent thereupon, there was nothing to restrain him from proceeding to execute and perfect, on his part, the agreement between him and Tucker; but that on the contrary, equity and good conscience required that he should do so; and that by virtue of the actual assignment and delivery of the said bond of Oliver, and of the preceding agreement and transactions in reference thereto, the said Tucker acquired a complete right to enforce the collection of said bond, and to hold its proceeds as an indemnity against the suretyships and liabilities in the verdict mentioned, which he had undertaken on account of the said Yates. The Court is therefore further of opinion, that the Circuit court erred in pronouncing the law upon the special verdict to be for the defendant in error, and in rendering the judgment thereon in his favour.

Judgment of the Circuit court reversed, with costs; and this Court proceeding to render such judgment as said Court ought to have rendered, judgment for the plaintiff in error, on the special verdict, with costs, &c.