Brown v. Ayres

By the Court, Shafter, J.: The plaintiff recovered a judgment against the defendants for the sum of five hundred dollars and costs, and thereafter assigned it for a valuable consideration to S. L. Cutter. Subsequent to the assignment, and before notice thereof to [528]the defendants, they paid the amount of the judgment, less twenty-nine dollars and fifty cents, to the Sheriff of the City and County of San Francisco, who had served a garnishment upon them in Dill et al. v. Brown, and to the Constable of one of the townships in said city and county on an execution held by him for collection in Vantine et al. v. Brown. The question is, whether the payments so made by the defendants to the Constable and Sheriff satisfy the judgment pro tanto as against the assignee, Cutter.

The fifth section of the Practice Act is as follows: “ In the case of an assignment of a thing in action the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment.” The question presented, though a new one in this State, has been twice passed upon in New York. (Countryman v. Boyer, 3 Howard Pr. 386; Robinson v. Weeks, 6 Howard Pr. 161; and Richardson v. Ainsworth, 20 Howard Pr. 530.) It was considered in both cases that the rights of the assignee were unaffected by payments made by the judgment debtor under the two hundred and forty-eighth section of the code (answering to the two hundred and fortieth section of the Practice Act), notwithstanding the judgment debtor malc-. ing the payment had no notice of assignment. Both cases were thoroughly considered, and the conclusion arrived at is in our judgment correct.

The defendants here, rely upon the fifth section of the Practice Act, as furnishing the test by which the validity of their defence is to be tried. We consider, however, that the question turns upon the two hundred and fortieth section of the Practice Act, rather than the fifth. The fifth section deals generally with the rights of assignees, while the two hundred and fortieth section deals with the powers of judgment and other debtors, under certain very exceptional circumstances, to do a very anomalous thing. Payment of debts by persons having no relations to them, meets with no encouragement at common law. It is apparent that such persons were regarded by it as officious intermeddlers in [529]