Green v. Beatty

Kinsey C. J.

Though a bond on strictly legal principles is not assignable yet in equity it is, and courts of law have permitted an assignee to sue on a specialty in the name of the assignor, and even to avoid any payment made to the assignor after due notice to the obligor of the assignment, (b) This has long been the received law. This is a right and not a favour: and if a right, it follows ax debito jvsitlice that the cestui que trust must be protected against any fraudulent attempts of the trustee in violation of his duty to destroy the action.

It has been said there is nothing in the bond, condition, or plea from which the court can infer that Green is a trustee, and that we are not permitted to go out of the record for evidence of the fact. The, articles by which this trust was created, are it is true not on the record, but in a case of this nature, the court feel themselves authorised to examine the question in a broader light, and to receive affidavits to prove the fact. It appears clearly and undeniably that Green was a trustee for the wife, and our opinion is that the release be set aside, and that Green show cause why an attachment should not go against him for this violation of his duty, (a)

Motion granted.

(b) Note.—See Mc. Cullum v. Coxe, 1 Dallas 189. numberless decisions both in England and this country confirm the doctrine, laid down in the text. See 1 Bac. abr. 249. fWtts, Edit.) where some of the leading cases are collected.

(a) Note.—See Legh v. Legh, 1 Bos. and Pull. 447. (Day's Edit.) and the cases cited in the note; 2 Selw. N. P. 499. Phila, Edit.) (Note, 31.)