1854. THOMPSON V. BELL said State of California, did, according to the said last mentioned law of that State, reassign and give up and relinquish to and for the benefit of plaintiff the said debts in the declaration mentioned. That in fact T. G. Robinson has never hitherto received or levied the said debts in the declaration mentioned, or any part thereof, nor received or levied any moneys applicable thereto, and sufficient to satisfy the same. By reason whereof plaintiff, before this suit, became and was entitled, by virtue of the said last mentioned law, in his own name to sue for and recover the said debts in the declaration mentioned, and every part thereof, and to retain the same to his own use, in like manner as if no such assignment as in the said plea mentioned had been made. Demurrer. Joinder. Atherton, for the plaintiff. First, the plea is bad. If it had stopped at the allegation of an assignment good under the law of California, it is clear that no bar would have been set up to an action in this country. It is shewn in Story On the Conflict of Laws, s. 565, that, in a country where a chose in action is not assignable, no action can be brought in the name of an assignee, though the assignment was made in a country where choses of action are assignable, because "the inquiry, in whose name a suit is to be brought, belongs not so much to the right and merit of the claim, as to the form of the remedy." And, in sect. 566, the author discusses the case where the law of the foreign country vests in the assignee a legal right to sue in his own name, and says that there are dicta and decisions pointedly shewing "that the suit must be brought in the name of the assignor, if the lex fori requires it." He refers to some English authorities, which, it is true, contain only dicta on the point. In Wolff v. Oxholm (a), where an action had been brought in a Danish Court by the assignees of a debt, Lord Ellenborough, delivering the judgment of the Court, said: "The assignee could not sue in the Courts of this country in his own name; the action must have been brought here in the names of the original creditors, even if they had assigned the debt for a valuable consideration;" and this on the assumption that "the assignment gave the assignee a right to sue in his own name in Denmark.” In Folliott v. Ogden (b) the Court, speaking of the effect of the vesting a bond in any other than the obligee, in a country of which the laws permit such vesting, say: "The subject matter of this action being a bond, it could only be sued for according to the laws of England relating to bonds; supposing therefore the right of the plaintiff to be gone, that could not be set up in bar of the action, which must be brought in the name of the present plaintiff, whoever might be in possession of the bond, since a chose in action is not assignable in law, and the defendant could not plead, that the obligee had assigned it." In General Steam Navigation Company v. Guillou (c) the Court say: "the plaintiffs contend, that the plea only means, that in the French Courts the mode of proceeding would be to sue the defendant jointly with the other shareholders of the Company under the name of their association: and, if this be the true construction of the plea, we all concur in the opinion that the plea is (b) 1 H. Bl. 123. 135. (a) 6 M. & S. 92. 99. (c) 1 M. & W. 877. 895. 1854. THOMPSON V. BELL. VOL. III. R E. & B. 1854. THOMPSON V. BELL. bad; for it is well established, that the forms of remedies and words of proceeding are regulated solely by the law of the place where the action is instituted-the lex fori; and it is no objection to a suit instituted in proper form here, that it could have been instituted in a different form in the Court of the country where the cause of action arose, or to which the defendant belongs." In Leroux v. Brown (a) a question arose whether an agreement, which, for non-compliance with the 4th section of the Statute of Frauds, could not be enforced if made in England, could, if made in France, in conformity with French law, be enforced here; and it was held that it could not, because "the fourth section applies not to the solemnities of the contract, but to the procedure; and therefore that the contract in question cannot be sued upon here;" per Jervis C. J. (b). Then the additional facts do not raise a defence. The judgment, supposing it to be for the debt sued for in the present action, is no bar without satisfaction. A judgment in a foreign Court is not of so high a nature as to create a merger; Hall v. Odber (c), Smith v. Nicolls (d). It seems that either the party who has recovered the foreign judgment, or the original creditor, might sue here: the case is one of those in which the party who first claims the right succeeds: this sometimes happens in the case of bailor and bailee. [Lord Campbell C. J. referred to Bank of Australasia v. Nias (e).] That case shews that the foreign judgment works no merger. [Crompton J. It does not appear but that the plaintiff here may be suing as trustee for the Californian assignee.] It does not: (a) 12 Com. B. 801. (c) 11 East, 118. (b) 12 Com. B. 824. (e) 16 Q. B. 717. 1854. V. BELL. and a judgment and satisfaction in this case might be pleaded in bar to an action upon the foreign judgment. THOMPSON There is some analogy between the foreign judgment and collateral securities, as bills of exchange, which cannot be pleaded in bar unless they have been paid; Tarleton v. Allhusen (a). [Wightman J. Suppose the plaintiff recovered in his own name in the foreign Court: what would the defendant plead if sued here ?] Judgment and satisfaction: less than that would afford no answer. [Lord Campbell C. J. He could not, according to Bank of Australasia v. Nias (b), if sued on the judgment, set up here any defence which he might have set up in California.] The plea, upon any view, does not go far enough: it should shew that the assignor could no longer sue in the Californian Courts; but it shews only that the assignee could sue there and had recovered judgment. In Plummer v. Woodhouse (c) it was held that a plea of judgment for defendant in a colonial Court was bad for not shewing that the judginent was conclusive there. But, assuming the plea to be good, it is answered by the replication: that shews a re-assignment to the original creditor, which, by the law of California, gives a right to the original creditor to sue, notwithstanding recovery of judgment by the assignee, if any part of the debt remains unsatisfied. That is at least as reasonable a law as the law alleged in the plea. [Lord Campbell C. J. It is at any rate not so repugnant to justice as to compel its disallowance by this Court. Crompton J. You do not say that the assignee cannot still sue.] That is unnecessary: the plea does not shew that the assignor (a) 2 A. & E. 32. (c) 4 B. & C. 625 (b) 16 Q. B. 717. 1854. THOMPSON V. BELL. was ever incapable of suing. But, if it could be so construed, the replication would still be well enough; for then it must be construed as shewing that the assignee, after his reassignment, could not sue. Cowling, contrà. The plea is good. The plaintiff is shewn to have assigned the debt, intending (since he must be presumed to know the law) that the assignee should sue upon it. It is immaterial where the debt was originally contracted: it must follow the person. The assignment makes the assignee owner of the debt; that is, sole owner. It is by no means clear that Story considers the assignee incapable of suing for the debt in any country. He cites Alivon v. Furnival (a), where a question arose whether two of four appointees could sue in England, the appointment being an instrument made in France under the French law, and authorizing, in its terms, the appointees to act jointly, or separately in case those not acting were hindered from acting or were absent, and no hindrance or absence appearing in that case and the Court there said (b): "This is a peculiar right of action, created by the law of that country; and we think it may by the comity of nations be enforced in this, as much as the right of foreign assignees or curators, or foreign corporations, appointed or created in a different way from that which the law of this country requires." That case is the stronger, because the French instrument transferred to the appointees no interest, but only the power to act for those interested. The rule as to corporations, there assumed, seems to encroach upon the lex fori much further than the (a) 1 C. M. & R. 277. (b) 1 C. M. & R. 296. |