#### Josiah Dunn *versus*Robert Snell and Others.

Ul the equitable assignment of a judgment, and its effects, as relating to the judgment creditor and debtor, and the assignee.

[An equitable assignment of a judgment may be by paroi; and if the judgment debtor, after notice of such assignment, receive a release of the debt from the judgment creditor, he cannot successfully plead it in bar to an action brought by the *bona JuLe*assignee of the judgment creditor, for a valuable consideration, upon the judgment to recover the amount thereof.]

This was an action of debt, on a judgment of the Circuit Court of Common Pleas, November term, 1813, for 50 cents debt or damage, and 15 dollars 44 cents costs of suit, and it was originally brought before a justice of the peace, when the defendants pleaded *nil debent,*upon which issue was joined ; and it came afterwards to the Court of Common Pleas, by appeal, where it was tried by a jury. A verdict having been rendered in that court for the defendants, under the direction of the court, — the plaintiff filed his exceptions pursuant to the provisions of the late statute, (1) and the action came accordingly before this Court, for its decision on the said exceptions.

At the trial, the judgment was admitted to have been duly recovered, and two executions had been sued out, and returned unsatisfied. The defendants gave in evidence a release of the judgment, under the hand and seal of the plaintiff, dated the 27th of September, 1817, acknowledging to have received the full amount thereof of the defendant *Snell;*and referring to the present action as pending.

The plaintiff’s counsel objected to the admission of the release; and offered witnesses to prove that the last execution aforementioned was delivered, in 1814, by the plaintiff’s * attorney, to one Warner, a deputy sheriff, to be by him duly served; that he having suffered the execution to expire in his hands without a service of it, the plaintiff directed his said attorney to bring an action against him, for recovering of him the amount oí the judgment; that, upon being informed of this *429direction, he said to the plaintiff’s attorney that he would pay the money without a suit, provided the plaintiff would give him the benefit of the said judgment, and assign the same to him; that, shortly afterwards, the said attorney communicated the said proposition to the plaintiff, who then agreed that, if *Warner*would pay the amount of the judgment, he should have all the benefit of the same, and requested his said attorney to execute any assignment which might be necessary, and agreed that *Warner*might at any time make use of his name, to aid in recovering the amount of the said judgment of the defendants ; that, in consequence of this agreement, *Warner*paid the full amount of the said judgment to the said attorney, who afterwards paid the same over to the plaintiff, when this latter again agreed, as before, that *Warner*should have the benefit of the judgment, &c.; that the defendant *Snell*had full knowledge that *Warner*had paid the amount of the said judgment, and was entitled to the benefit of it, as aforesaid, before he procured the said release; and that the present action was sued and prosecuted for the sole benefit of the said *Warner.*But the Court of Common Pleas overruled the objection, and admitted the release to go in evidence. The plaintiff’s counsel then offered the same witnesses to prove the facts aforesaid, thereby to show that the said release was fraudulently obtained, and ought not to bar the plaintiff from recovering in this action ; and also to show that said judgment had been *boná fide*transferred to said *Warner.*But the court refused to permit the said witnesses to prove the facts aforesaid, unless the plaintiff’s counsel should first produce a regular assignment of said judgment to said *Warner,*under the hand and seal of the plaintiff ; and they instructed the jury that, if they believed *that the plaintiff executed the said release, which was not denied, they should find a verdict for the defendants; and they so returned their verdict, as is above stated.

*Fessend,en,*in support of the exceptions.

The facts exhibited show an attempt to practise a gross fraud. The assignment of the judgment was good and sufficient. In the case of *Jones*vs. *Witter,*(2) the Court say, the fact of the assignment may as well be proved by witnesses, as by the name of the party making it; and it is wholly immaterial in what form the assignment has been made ; the interests of the person to be charged being entirely protected by the necessary fact of notice to him. Debts, and even deeds, may be assigned by paroi.

Here was sufficient authority to *Warner*to discharge the judgment. An attorney of record has seldom a written authority; yet *430he every day discharges judgments and executions, and his authority is never questioned. If *Warner*had received this money from the defendants, under the authority offered to be proved at the trial, and the plaintiff had afterwards brought his action on the judgment, it is impossible to doubt that this Court would have considered the plea of payment maintained by evidence of such receipt by *Warner.*

*Greenleaf,*for the defendants.

The general principle, that the equitable interest of an assignee is to be protected, is not in this case contested. The only question is, who is an assignee, and how his character, as such, is to be proved.

This Court has decided, that the instrument transferring ought to be of as high a nature as the instrument transferred ; and that this last ought to be delivered to the assignee. (3) And in the subsequent cases there was either a *deed*of assignment, as in *Dix*vs. *Cobb,*(4)*Gould*vs. *Newman,*(5)*Parker*vs. *Grout,*(6)*Brown*vs. *Maine Bank,*(7) and *Allen*vs. *Holden,*(8) or, in cases of contracts not under seal, a *delivery over*of the instrument assigned, with or without endorsement. (9) And, in *Skinner*vs. *Somes,*(10) .the Court say, “We have gone as far in favor of assignments * as the authorities, or the reason of them, would jus tify us.”

But the present case is not within any prior authority; because there was no deed of assignment, and there could be no delivery, it being a judgment. Nor is it within the reason of any of the former decisions; for *Warner,*who claims to be assignee, had no means whatever of executing to the defendants a legal discharge of the contract, nor of extinguishing the evidence of it; which seems to be the reason why delivery, at least, is required. The defendants were therefore right in paying the money to the person who alone could legally discharge them. If the plaintiff had promised this money to *Warner,*that is an affair between them only.

Nor does the supposed notice to the defendants vary the case; since they could not be supposed to know more than was true in fact; which was, that *Dunn*had promised *Warner*the benefit of the judgment against the defendants, and had requested his attorney to draw the necessary assignment; which was never done, and which, after a lapse of five years, they had a right to suppose was abandoned. This brings the case precisely within the principle of *Foster*vs. *Lowell,*(11) where the Court, considering that the parties *431themselves contemplated an assignment, which was never made, as the evidence and completion of their contract, and that no memorandum was at the time made of the assignment, observe that to sanction such loose, incomplete, and unexecuted contracts, would authorize practices extremely mischievous.

(1)

*Slat.*1817, c. 185

(2)

13 *Mass.*Rep. 304.

(3)

1 *Mass. Rep.*123, *Perkins*vs. *Parker.*

(4)

4 *Mass. Rep.*508.

(5)

6 *Mass. Rep.*239.

(6)

11 *Mass. Rep.*157.

(7)

11 *Mass Rep.*153.

(8)

9 *Mass. Rep.*133.

(9)

10 *Mass. Rep.*482, *Quiner*vs. *Marblehead Social Insurance Company.*—12 *Mass Rep.*281, *Mowry*vs. *Todd.*—13 *Mass. Rep.*304, *Jones*vs. *Witter.*

(10)

14 *Mass. Rep.*107.

(11)

4 *Mass. Rep.*308

■ Parker, C. J.,

delivered the opinion of the Court. The objection to the assignment, as offered to be proved by the witnesses, is that it was not by deed ; and the objection rests on the general principle which was assumed by the counsel, that an assignment of a specialty must be by an instrument of as solemn a nature as the instrument itself which- is to be assigned. Considering a judgment as a specialty, it is obvious that, upon this strict principle, it could never * be assigned; because there is no instrument *in pais,*of so high a nature as the record of a judgment of court.

But we do not think that the general principle is at all applicable to equitable assignments; which do no't pass a legal right in the, security or debt to the assignee; but merely vest in him an equitable interest, which the courts of law will protect against the frauds of the debtor, or collusion between him and the original creditor.

In the case before us, there was a valuable and full consideration paid by the assignee, and an actual agreement to transfer, which wanted nothing but written evidence to make it perfect; and, indeed, directions were given to make out an assignment in form. Against creditors of *Dunn,*who might have summoned the debtors as his trustees, the right of the assignee might have been questionable; but by *Dunn*himself it can never be questioned; nor by the debtors, who had full knowledge of the assignment. The transaction between the creditor and the debtors, after knowledge of this assignment, was a gross fraud, of which they cannot avail themselves in a court of law. *(a)*

The objection to the evidence offered is merely technical. It is not doubted that this debt, upon which the judgment was rendered, might have been assigned by writing without seal; or even, according to the decisions, without writing; so as to have enabled the assignee to have brought an action in the name of the assignor, and to have pursued it to judgment; and that, in such case, the debtor having notice, no payment by him to the assignor would have discharged the judgment. The judgment is only evidence of the debt, and if the execution is delivered over, with intent to transfer the *432debt, upon a fair bargain upon a valuable consideration, there is no reason why the transaction should not be as binding upon the parties, as the paroi assignment of the debt before it is reduced to a judgment. (b) And, in this case, the execution was in fact delivered to the use of the assignee, so that the judgment creditor could not have obtained another execution upon that judgment. ■

* The cases cited do not oppose this doctrine. It will be perceived, by attending to the judicial history of equitable assignments contained in our reports, that there has been a gradual extension of the doctrine, according to the more full development of the principle on which it depends, which successive actions have presented. And it will be seen, by a recurrence to the several cases decided, that they are all founded upon a fair ipplication of the principles which have long governed the courts of law and chancery in *Great Britain.*

The judgment of the court below is reversed, and a new trial is to be had at the bar of this Court.

(a)

 Vide *Eastman & Al.*vs. *Wright*& *Al.*6 Pick. *316.—Mountstephen*vs. *Brooke,*1 *Chitty, R.*390. — *Paine*vs. Rogers, 1 *Dougl.*407. — *Legh*vs. *Legh,*1 *B. & P.*447. — *Jones & Al.*vs. *Herbert,*7 *Taunt. 421.*— *Jewett*vs. *Newman,*4 *B. & A.*419. --4 *M. &*S. 423.

(b)

*Heath*vs. Hall, 4 Taunt. 326. — *Howell*vs. *M'lvers, 4 D. & E.*690. — *Jones*vs. Witter, 13 *Mass. Rep.*304.