Perry v. Barry

U.S. District Court

Decided December 15, 1804

U.S. District Court · decided 1804-12-15

Indebitatus assumpsit for money had and received by defendant [James Barry] to the use of the bankrupt [Nantes, surviving partner of R. Muilman & Co.], and of the plaintiffs as his assignees. Hadfield. of London, held a protested bill for 819,000, drawn by Browne, of Richmond, Virginia, and assigned it to Muilman & Co., of London, for collection, who employed Barry (the defendant) as their agent to collect it. Muilman & Co. became bankrupt.

Decided 1804-12-15

THE COURT

¶1was of opinion, 1. That tlie assignment did not give tlie assignees a right to maintain an action in their own names in right of the bankrupt, and that whatever may be the general principle, it must yield to tlie laws of Maryland (1704 and 1753) enacted upon that subject; 2. That there was no evidence of an express assump-sit by the defendant to the plaintiffs, and if there w'as, yet as the assignment is to be considered as totally void, there was no consideration; 3. That if the action had been in the name of the bankrupt, the assignment. being void, could not have been set up as a bar.

¶2The plaintiffs became nonsuit.