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Whipple & Jones v. Briggs.

so paid; and that, if the plaintiffs executed the notes signed by them, and Gleason, as their surety, and they (Jones and Whipple) were really as between themselves both principals in those notes, and they were executed with the understanding between them (Jones and Whipple) that each should pay his half of them, and they were so executed for the purpose of being used in payment of the original notes signed by the plaintiffs and Briggs, or to raise money to make such payments, and were delivered to and received by the banks, in payment of said original notes signed by Briggs and the plaintiffs, or were discounted by the banks and the proceeds of such discount applied in payment of the notes signed by Briggs and the plaintiffs, without any division of the money between the plaintiffs, it would be such a joint payment as would entitle the plaintiffs to recover in this joint action, notwithstanding Jones may have paid one of the new notes and Whipple the other.

The court charged the jury that if the Worcester lands were conveyed to Jones to secure him for his liabilities for Briggs, including the two bank notes in question, then, inasmuch as Jones had converted such security into money to an amount greater than the amount he had paid, and, as the parties had neither of them made any application of such funds to any particular debt or liability, the money so received by Jones must be applied on his (Jones) liabilities for Briggs, which Jones had paid, rather than on his liabilities for Briggs which were still outstanding and unpaid, and that the money so received by Jones would operate as a satisfaction of one half the amount the plaintiffs claimed to recover, but that it would be no bar to a recovery in this action of the other half, which the plaintiffs might recover for the benefit of Whipple, if the jury found the other point made out, that is, that the payment, when made, was a joint payment; and that, if the payment by the plaintiffs, when made, was such a joint payment as would sustain this joint action, the fact that Jones had since received money out of the securities of which he was bound to apply sufficient to satisfy his half of the sum claimed by the plaintiffs in this suit, would not bar a recovery to the amount of the other half, nor would it bar such recovery even if Jones had received and still held in his hands moneys received from such securities sufficient to pay all his liabilities for Briggs, and all he had paid for Briggs,

Whipple & Jones v. Briggs.

together with the whole amount the plaintiffs claimed to have paid on the two bank notes signed by them.

The jury returned a verdict for the plaintiffs for one half the | amount which they claimed to recover. The defendant excepted

to the refusal of the court to charge as requested, and to that portion of the charge above given.

W. P. Briggs, pro se.

There was no evidence in the case to warrant the charge, and it was therefore erroneous to tell the jury that if they found from the evidence that the notes were paid out of a joint fund, then the plaintiffs could recover, when there was no such evidence in the case. Whether the exchange of notes with Gleason's name on them was payment for the notes given by Briggs, was a question

13 Vt. 370.

If there was any joint indebtedness from the defendant to the plaintiffs, then most clearly the payment to Jones of the $1,400 was a payment to both; if there was no joint claim, why then the suit fails.

J. Maeck and W. W. Peck for the plaintiffs.

The plaintiffs' right of action accrued on giving their own notes to the bank and taking up the notes they had signed for Briggs. Irley 1. Jewett, 2 Met. 173; Maneely v. McGee, 6 Mass. 143; Thatcher v. Dinsmore, 5 Mass. 299; Cornwall v. Gould, 4 Pick. 444.

This right of action accrued to them jointly. Osborne v. Harper, 5 East 225; Chandler v. Brainard, 14 Pick. 28$; Doremus V. Selden, 19 John. 213; Doolittle v. Dwight, 2 Met. 561.

Though the plaintiff Jones may be Briggs' debtor, it does not defeat this action. If, in truth, Jones has sufficient of the defendant's money in his hands to pay all the liabilities he is under for him, and the whole of this debt also, Whipple might also maintain an action against Jones at the same time. If the defendant is correct, then if Jones is insolvent, Whipple must lose his debt.

It is at the election of the party who holds several securities for the same debt to prosecute them all at the same time or not. Stevens v. Briggs, 14 Vt. 44.

Whipple & Jones r. Briggs.

The opinion of the court was delivered by

BENNETT, J. We think this joint action is well brought. The jury bave found that the old notes which the plaintiffs had signed with the defendant, as his surety, had been paid by the new notes which the plaintiff's gave, signed also by Gleason as their surety. It is a common principle that, if two joint sureties pay the note of their principal out of their separate funds, each one has only a right o action for what he has paid ; but if the payment is made out of their joint funds, they have a joint action against their principal. I the case cited from the 5th of East, a part of the money was paid on the joint credit of the two sureties, and a part of the money had been raised upon their joint note, and it was held that a joint action was well brought. This seems to be well settled law. See 14 Pick. 283; 19 John. 213; 2 Met. 561.

The difficulty arises on the other part of the plaintiffs' case. The exceptions show that after the plaintiffs had paid the two notes, Jones received from the avails of real estate sold by him, and which had been conveyed to him by Briggs to indemnify him for liabilities incurred, the sum of fourteen hundred dollars; and that Jones still holds this money in his hands, except about the sum of eighty dollars ; and it does not appear that Jones has paid at any time, for the use of Briggs, any moneys except the sum of seven hundred and fifty dollars to take up the notes of Briggs to the banks, and the eighty dollars paid to Mr. Briggs himself. As the case now stands, the plaintiffs cannot recover. When Jones took the security from Briggs, it enured also for the benefit of his co-surety, Whipple, in equity; and, if the sureties had paid the bank notes which they had signed for Briggs, out of their separate funds, this would not have affected Whipple's right to have claimed a benefit, in common with Jones, in the security, in chancery. The case cited from the 8th Iredell 286, is in point: see also p. 56 in same volume. But in this case the plaintiffs show a joint right of action against Briggs for the seven hundred and fifty dollars, and in such a case a release by one would operate as a release by both, and a payment to one would be a payment to both. As Jones holds the security, upon the facts that now apprar, for the common benefit of himself and Whipple, we thinķ the defendant may insist upon an application of so much of the money raised from the sale

Bishop, Smith & Co. t. Trustees of Hart.

of his lands in the hands of Jones as will be necessary to discharge the joint right of action of the plaintiffs against him. This, common justice requires, and Jones does not set up a claim to make an application of the money upon any other demands against Briggs.

If the plaintiffs had been entitled to recover at all, we do not see why the recovery should not have been for the whole, and not for a moiety of the sum paid, to which the county court limited

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Joseph M. Bishop, John BRADLEY, Thomas H. CANFIELD, AND John Suuri v. GEORGE G. CATLIN AND H. V. HORTON, trustees of Moses L. HART AND GEORGE HART.

General and void assignments. Rights and liabilities of the

assignee under the trustee process.

An assignment by a firm, for the benefit of their creditors, of all their right and title

in certain specified real and personal property and a conveyance, at the same time, by one of the partners, for the same general object, of several parcels of land previously held by him, accompanied by an immediate suspension of the business of the firm, which is thereafterwards carried on by the assignees, will afford, in the absence of any showing to the contrary, a sufficient presumption that the assignment was of a sufficient amount of the assignor's property as to render it, in that respect, a general assignment.

If an assignment is void under our statute on account of its being a general assign

ment in trust for the benefit of creditors, the assignee should be allowed the amount of the assignor's indebtedness to him, and the expenses to which he has been subjected in taking care of, and selling the property, and a reasonable compensation for his services, before being made liable as the trustee of the assignor.

If the creditor of the assignor in such an assignment, instead of directly attaching

the property, seeks to charge the assignee as the assignor's trustee, he thereby ratifies the assignment and any disposition of the property which the assignee has

made in pursuance of it. Under such an assignment the assignee should not be adjudged the trustee of the

assignor on account of any money received by bim on the sale of real estate, which was included in the assignment, the title to which may be defeated by an attach. ment of it by other creditors of the assignor.

Bishop, Smith & Co. v. Trustees of Hart.

TRUSTEE PROCESS. It appeared from the disclosure of the trustees, and their answers to the interrogatories filed by the plaintiffs, that the principal defendants had made an assignment of their property to the trustees who were their creditors and holden for them as sureties and endorsers. The assignment was for the benefit of, and preferred other creditors as well as the trustees. The assignees took possession of the property assigned and had converted a part of it into money. It was claimed by the plaintiffs that the assignment was void and that the trustees were chargeable for the property and money which they had received under it. The county court, May Term, 1854,-POLAND, J., presiding,-decided that the assignment was invalid and that the trustees were chargeable for the property received by them under it to the amount of the plaintiffs’ judgment against the principal defendants. Exceptions by the trustees. The nature of the assignment and of the claims of the trustees under it, and the other facts stated in the disclosure and answers, sufficiently appear in the opinion of the court, which after argument by

L. E. Chittenden, for the trustees; and by

W. W. Peck and E. Harvey, for the plaintiffs,

was delivered by

ISHAM, J. It is not pretended that the trustees are chargeable in this case, unless a liability is created under an assignment of property to them by the Messrs. Harts, on the 23d of September, 1852. The property transferred to them consisted of real and personal estate, and was to be disposed of, by them, for the payment of their debts, and debts due to other creditors mentioned in the assignment. If that assignment is valid, the trustees should be discharged, as it appears from their disclosure, that the property is insufficient to pay the debts for which it was transferred to them. But if the assignment is void, either at common law or by statute, the trustees are chargeable under this process, and the property assigned to them must be treated as goods and effects in their hands belonging to the principal debtor. The Comp. Stat. 262, $ 46, contains express provisions to that effect. In looking at this assign-.

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