Dawson v. Coles

An obligation maybe°assign-not unckrseaE ob^tion or covenant for the payment of money having been assigned, and nosignment^iven 1° covenantor' ^oughtby the nmlSieof'athe assignor, upon the obligation or covenant, to which the defendant pleads a former recovery and satisfaction, the plaintiff may reply the assignment with notice thereof to the defendant, and notice to him that the former action was not prosecuted by the authority and for the be= nefit of the as* signee.

THIS was an action of covenant, on a sealed note or instrument, dated the 12th of June, 1815, by which the defendant covenanted to pay the plaintiff, or his heirs, two years after date, the sum of 250 dollars. The defendant pleaded, 1. Non est factum: 2. Payment: 3. A release : 1 ^ J and, 4. That before the commencement of this action, to • i wit, on the 24th of June, 1817, the plaintiff brought an action in the Justice’s Court of the city of New-York, for the sum of 100 dollars, upon the very same identical writing, covenant or agreement before mentioned, and that such proceedings were thereupon had, that the plaintiff, on the 30th of June, 1817, and before the commencement of this action, recovered against the defendant the sum of 26 dollars, and 50 cents, being all the balance that was then due to, and claimed by, the plaintiff, upon the sáid covenant, with costs, and that the defendant, on the same day, paid the plaintiff the balance adjudged to him, with the costs. To the second and third pleas respectively, the plaintiff replied an assignment of the covenant to one William Brady, with notice to the defendant, and that this suit was commenced for the benefit of Brady. To the fourth plea the plaintiff replied, that before the 21st of June, 1817, to wit, on the 4th of September, 1815, the plaintiff, for a valuable consideration, sold, transferred, and assigned over the sealéd note; Covenant or agreement in the declaration mentioned, to a certain W. Brady, for his own use, of which transfer and assignment, the defendant, on the same day, had notice ; and the plaintiff avers, that this action was commenced, and is prosecuted for the sole use and benefit of Brady, for the purpose of enabling him to receive and collect the money due on the note ; and that the suit in the Justice’s Court was not prosecuted by the order, or on account of Brady, of which the defendant had notice, by Brady’s appearing in the Justice’s Court on the trial of the cause, and then and there producing the said sealed note, covenant or obligation, together with the assignment thereof, wrtiten thereon, and subscribed by the plaintiff, and by Brady’s then and there claiming the money due upon the note, and declaring, that the action in the Justice’s Court was not prosecuted by his order, or on his account, or for his benefit. To the replications to the second and third pleas, the defendant rejoined, concluding to the country. To the replication to the fourth plea, there was a general demurrer, and joinder in demurrer.