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Richardson agt. Ainsworth.

(Robinson agt. Weeks, 6 How., 161; Countryman agt. Boyer, 3 How., 386.)

5th. The assignees of judgments and choses in action will be protected against executions in the hands of the sheriff. The Code has not gone so far as to make judgments and executions issued thereon, liens upon choses in action, or a notice equivalent to a lis pendens. (Robinson agt. Weeks, 6 How., 161.)

6th. The plaintiff's counsel was not bound to take any notice of, or recognize in any manner, Mr. Troy, who was a perfect stranger to him, and who denounced in disrespectful manner Mr. Smith, who had regularly appeared for the defendant. It cannot be claimed upon any ground whatever, or under any circumstance in this case, that the assignee was bound to give notice of the assignment to the defendant or any other party; for a general assignment to a receiver, under the order of the court, or the bankrupt or insolvent laws, by the nominal plaintiff, would have given such receiver or assignor no title to the judgment as against the assignee, even without any notice whatever. (Muir agt. Schenck, 3 Hill, 228.)

7th. The order of the city court appealed from should be affirmed, with costs.

By the court, Emott, Justice. The case of Muir agt. Schenck (3 Hill, 228) is clearly, and, we think, correctly to the point, that a complete title to a chose in action, consisting of a debt due from a third person, passes by its assignment without notice to the debtor. The judgment in this case was assigned by the plaintiff to one Felt, on the 2d of June, 1860, and he became the owner of the debt, as well as the judgment recovered on it.

The plaintiffs in the judgment against Mary Richardson procured an order for her examination on the 9th of June, under $ 294 of the Code, with a view to an appropriation or application of the present judgment to their benefit,

Richardson agt. Ainsworth.

under $ 297. After this the defendant in this judgment voluntarily paid it to them, and their proceeding was withdrawn.

We agree with the reasoning and opinion of Judge Johnson in Robinson agt. Weeks, (6 How. P. R., 161,) that such payment cannot prejudice a prior assignee in good faith. That case was well considered, and the reasoning of the opinion is perfectly satisfactory.

The payment cannot be construed as made under the compulsory proceedings. They were waived and dropped.

But if not, the order gave no lien upon the judgment, or the debt,-certainly not without notice to the assignee, or the defendant in the first and plaintiff in the second judgment. In this case, as the assignment was before the proceedings, it was beyond their power at any rate.

The order is affirmed, with costs.

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Contained in the following Reports:

20 HOWARD'S PR. R.; 21 N. Y. R. (7 Smith;) 4 BOSWORTH; 32 BARBOUR,

AND No. 1, VOL. 12 ABBOTT's R.
(The remainder will be included in the Digest of 21 How. Pr. R.)


1. An action of ejectment, or for possession of real property, against

a sole defendant, who dies before a report of referees is made, or verdict rendered, abates, absolutely, and no judgment upon such report or verdict can be entered nunc pro tunc, because such report or verdict is null and void. (Kissam agt. Hamilton,

Ante, 369.) 2. A report of referees is not considered made, nor the case decided,

until the report is signed. The delay by referees, in making and delivering their report; that is, while the case remains with them

sub judice, is not to be deemed the delay of the court. (Id.) 3. The Code provides for but a single answer, in which the defend

ant is required to include every defence upon which he relies to defeat the action; he may, therefore, include a defence upon

the merits—in bar, with a defence of a former suit pending for the same cause of action-in abatement. It is, however, the duty of the judge at the circuit, in such a case, to distinguish between the several defences in submitting the cause to the jury, and require them to find separately upon them. (Gardner agt. Clark, 21 N. Y. R., 399; see to the same effect Sweet agt. Tuttle, 4 Kern., 465.)


4. Whether the pendency of an action by the original owner of a

claim is pleadable in abatement, to the prosecution of a suit for the same cause of action, by an assignee thereof subsequent to the commencement of the first action. Quere? (Id.)


1. Where, in an action against a collector of customs, judgment is

obtained against him for the amount of duties exacted and received by him, under protest, for goods imported, the ownerplaintiff can issue his execution against, and the collector is liable personally for the amount of the judgment. (Knoedler agt.

Schell, Ante, 216.) 2. There is no distinction in principle as to the right to a lien in

rem between the cases of supplies furnished to a ship owned by owners who are subjects or citizens of a foreign country, and a ship owned by owners who are citizens of the United States, but residents of a different state from that in which the supplies were furnished. In both cases it must appear on the part of the mate

rial man,

1st. That the supplies furnished, or repairs done, were necessary for the seaworthiness of the vessel. (Whitlock agt. Barque

Thales, Ante, 447.) 3. 2d. That the vessel, its owner, master, or agent, had no money or

credit in the port where the debt accrued sufficient to raise means to pay for the supplies, save by reference to an implied hypothe

cation of the rem. (Id.) 4. 3d. A party who advances moneys to the master of a disabled

ship, in a port of another state, to which she does not belong, and in which her owners do not reside, to enable the ship to get the required supplies or repairs, is entitled to the same lien in rem

as the material man. (Id.) 5. 4th. Where such a lien exists the taking a note in payment does

not divest the lien if, on the trial, the creditor is ready to produce

and surrender it. (Id.) 6. 5th. A propeller, which is usually employed as a tug-boat in and

about a harbor, violates the act of Congress of July 7, 1830, by exclusively carrying passengers for hire to any given place for a single trip, without a license obtained under and in pursuance

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