Beach v. Fairbanks

Loomis, J.

In this case Beach, the plaintiff, has brought *172 an action at law against W. D. Fairbanks & Co., the defendants, and has factorized Smith, Northam & Co., of the city of Hartford, as' debtors of the defendants. Both the plaintiff and defendants reside in the state of Illinois, and no other service was made upon the defendants than by leaving a copy of the writ with Smith, Northam & Co. as their agents.

Upon these facts no question could’ arise as to the legal effect of the proceedings, but for the further fact, which is found, that the claim of Beach upon Fairbanks & Co., which is the subject of the suit, had, before the suit was brought, been assigned by him to Smith, Northam & Co., and that the action was in fact brought by them in the name of Beach. And the defendants contend that it is a case therefore where Smith, Northam & Co. are attempting to factorize themselves, and that this can not legally be done.

We will not decide whether, if Smith, Northam & Co. were the plaintiffs on the record, they could in their own suit factorize themselves. This question has been decided differently by the courts of different states in this country. It seems to be agreed that goods in the hands of a party belonging to his debtor may be attached by a garnishee process instituted by himself; and such seem to be the old decisions in England under the custom of London, on which our statute of foreign attachment is founded. Sergeant’s Law of Attachment, 72; 1 Rolle’s Abr., 554. But it is not agreed that a debt owed by a party may be attached by that proceeding in a suit brought by the debtor upon a claim which he may have against his creditor. Judge Washington, in a well considered opinion in Graighle v. Notnagle, Peters’ C. C. R., 245, holds that it may be done under the statute of Pennsylvania, which does not differ essentially from ours. The same thing is held in Boyd v. Bayless, 4 Humph., 386 ; Grayson v. Veeche, 12 Martin, 688 ; Richardson v. Gurney, 9 Louis., 285; Lyman v. Wood, 42 Verm., 113 . The contrary has been held in Blaisdell v. Ladd, 14 N. Hamp., 130; Hoag v. Hoag, *173 55 id., 172 ; Knight v. Clyde, 12 R. Isl., 120 ; while in Belknap v. Gibbens, 13 Met., 471 , the Supreme Court of Massachusetts, without deciding the point, showed an evident leaning in the same direction. We find it not necessary to consider the point, since the case can be decided upon other ground.

It is well settled that in questions of jurisdiction the parties on the record, that is, the nominal parties, determine the question, and not the parties equitably interested. This court applied this rule in Sharps' Rifle Manuf. Co. v. Rowan, 34 Conn., 329 , there holding that the real party, of whom the defendant on the record was a mere agent, with no personal interest, could not be considered, in a case where it was claimed that the suit woirld not lie against the. real party. In Blanchard v. Ely, 21 Wend., 344 , Cowen, J., giving the opinion of the court, says that the rule that a man can not sue himself is applicable “ to those cases only where the same individual, in order to sue, must appear on the record as both plaintiff and defendant.” The application of this rule to the present case would sustain the suit even if the record plaintiff had but a naked title and no real interest whatever. But it is not necessary for us to go so far as this. The plaintiff, Beach, had not, by his assignment of his claim to Smith, ETortham & Co., divested himself of ail equitable interest in the claim. It is expressly found that, although the assignment is in form absolute, it was yet made “ in consideration of their agreeing to apply the proceeds thereof on his debt to them, unless sooner paid by him.” Here therefore the whole proceeds were to be applied for his benefit, and he retained therefore an equitable interest in the claim. He had also the entire legal interest, for this did not pass by the assignment. It is true that the statute (Gen. Statutes, p. 417, sec. 6,) allows the bona fide assignee and owner of a claim to sue upon it in his own name, but this does not make the assignee the legal owner. His interest is still an equitable one, and the statute simply allows him to maintain a suit on such equitable title. The language of the statute is *174 that the assignee “ may sue thereon in his own name,” leaving him his choice whether to do so under the permission of the statute, or under the common law to sue in the name of the assignor, as still the holder of the legal title.

The assignor in this case, having both the legal title and an equitable interest, must be considered as the real party, and not the assignees, who had no legal title, but only a certain equitable interest. Their real interest was rather in the nature of a pledge or mortgage, entirely consistent with a right in the assignor to redeem the subject matter out of their hands, as well as with a duty on their part to account to the assignor for whatever should be collected on the claim.

The plaintiff on the record standing in this position,-it can make no difference that the suit was brought in fact by Smith, Northam & Co. in his name. It does not differ from the case of a suit actually brought by the plaintiff at their request or at their expense. The whole is a matter of which the law will take no notice. The plaintiff on the record being regarded in law as the real plaintiff, there was no more difficulty in garnisheeing Smith, Northam & Co. in the suit than if they were total strangers to the cause of action and to the suit.

A question was made by the plaintiff’s counsel whether the claim of Beach on the defendants, being for damages for a fraud, could be assigned. We have not thought it necessary to consider that question, as, if it was assignable, its assignment does not affect the case.

Judgment is advised for the plaintiff.

In this opinion the other judges Concurred.