Raymond v. Johnson

J9HN80K. Although the cognif.e',11and right of an aí t'ife' hisoivent stato°-f y'e/’an action brought in this state must he in the name of the insolvent. haTbeéa%ominsolvent’7!)"Reassignment the suit ^ win’ hb discharge, íinuein the in-loathe benefit !n°the namíof $m assignor, by person benefieially interested, the defendavaii himself tiff’s'1 want^'of thaTsomeother theS°one thfOT 4he°s%uiteneis partyhVeSnefie dally interest-

, . THIS was an action of assumpsit. Plea, the general issue It was originally commenced in the mayor’s court of the city °f New-York, in the vacation before February term, 1812, of that court; and was removed into this court by habeas corpus. cause was tried at the New-York sittings, in Aprils 1814, where a verdict was taken for the plaintiff, for 411 dollars and . , 1 7 76 cents, subject to the opinion of the court on the following C8.S6» ,r ^ On the 3d of August, 1807, the plaintiff made a promissory note f°r 487 dollars and 83 cents, at ninety days, payable to 0ne Lloyd, and endorsed by Lloyd to one Bruce ; but was re-tamed by the plaintiff in his possession. A few days after, the plaintiff borrowed of the defendant the sum of 200 dollars, for which he gave the defendant his due bill, and at the same time delivered him the promissory note as collateral security, under an agreement, that on the payment of the said sum with interest, defendant should return the said note to the plaintiff. In October, 1807, in the same year, Bruce, the second indorsor on the note, sold and delivered to the defendant, a quantity of . , bread, for which he promised to pay Bruce, who was then ignorant that the defendant held the note endorsed by him, the sum of 500 dollars in thirty days. The plaintiff having neglected to pay the defendant the money borrowed of him, and the note, which was delivered as collateral security, not having been paid, it was protested for non-payment, and notice given to ^ie indorsors: and when, at the expiration of the thirty days» Bruce called on the defendant for payment of the bread sold him, the defendant tendered Bruce, in payment, the said note» ' and the balance in cash, which Bruce, who knew himself to be fixed as indorsor, but was unacquainted with the agreement between the plaintiff and defendant, accepted in satisfaction, and discharged the debt. In the latter part of 1811, the plaintiff took up the note, by giving Bruce other notes, which he had drawn, and which were endorsed by one Childs, which notes have been since paid. About the same time, but before the commencement of the suit in the mayor’s court, and before the plaintiff’s discharge as an insolvent, bu,t after he had advertised Ms intention to take the benefit of the act, in consideration that Childs had advanced money to maintain the plaintiff’s family, and intended to make further advances for the plaintiff, delivered the note to Childs, and verbally assigned him his interest therein, uid empowered Mm to bring an action in his name. The plaintiff, in April, 1811,, was discharged, and Ms estate assigned under the insolvent act of 1811; and he had previously, in January, 1810, been discharged in the state of Ncm-Jersey,, and all his estate, real and personal, was there assigned in trust for the benefit of his creditors, to one Abraham Allen.