majority">Green, President,

delivered the opinion of the Court:

*96It is obvious that the 24th section of chapter 106 of the Code of W. Va. page 561 simply authorizes a claimant of the property attached to file a petition in an attachment-suit claming the property ; but there is nothing in this section requiring such claimant to file such petition, or prohibiting him to bring a separate suit setting up his claim. The plaintiff in this case, A. S. Hatch, could have under this section filed his petition in the attachment-cause of Curry v. Calvert et al setting up his claim to the $1,000.00 negotiable note or he could, if he preferred, bring his separate suit claiming this note and asking that its payment might be enforced out of the real estate on which it was a vendor’s lien. The only question is, whether, when he instituted such suit, it was not necessary that he should make the attaching creditor, James B. Curry, a party defendant as one who claims that the proceeds of this note was applicable to the payment of his debt by reason of his attachment. It is not seriously disputed, that if this $1,000.00 note was not negotiable, it would be absolutely necessary for the court to have the attaching creditor, Curry, made a party to the suit before the court could have properly entered a decree settling the rights of parties in this case. But it is insisted that, this note being negotiable, the makers of it could not be attached, before the note became due, by the creditor of the payee, and that this attachment could not possibly create a lien in favor of the attaching creditor, Curry. Many authorities are referred to by Drake in his work on Attachments to sustain this position see Drake on Attachments §582 to 588. There are decisions which more or less tend to this conclusion in New Hampshire, Vermont, Pennsylvania, Louisiana, Texas, Wisconsin, Michigan and Kentucky. But on the contrary there are decisions in many States, referred to by Drake in his work on attachments §589 to 592, which tend‘to the conclusion that an attachment by a creditor of the payee of a negotiable note not due may be sustained, when the maker of such note is the garnishee under certain circumstances. Author*97ities are referred to to sustain this in Connecticut, Tennessee, Mississippi, Missouri, Maryland, Georgia and North Carolina.

In §587 Drake states this as his conclusion : “ That,' as a general rule, the maker of a negotiable note should not be charged as garnishee of the payee under an attachment served before the maturity of the note, unless •it be affirmatively shown, that before the rendition of the judgment the note has become due, and was then still the property of the payee.”

Daniel in his work on negotiable instruments §784 and §812 states, that when the payee’s name is endorsed on the negotiable note, this raises a presumption that such endorsement was made before its maturity, and that the holder acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity. But he further says: “ That the presumption as to the time of acquiring the instrument is not a strong one. The endorsement is almost invariably without date, and without witnesses. The transaction by delivery merely leaves no foot-print upon the paper by which the time can be traced. And the presumption in favor of the holder at the time of the transfer, being without any written corroborative testimony, is of the slightest nature, and open to be blown away by the slightest breath of suspicion.”

The appellants’counsel insists that this, record shows many reasons for suspecting that the plaintiff, A. S. Hatch, was not the bona fide owner of this note, and that it had not been transferred to him for a valuable consideration either before or since it became payable. The decree in this case complained of was not rendered till after the maturity of this note. And so far from its having been determined in the attachment cause,' that the makers of this note could not be liable to pay this note to the attaching creditor, Curry, the court has required the makers to answer his bill. This responsibility of the makers of this note to the attachment-creditor is t husin *98that case expressly left opon and undecided. It was it seems to me, improper in the court to decide that the makers of this note should pay this note to the alleged holder of the note, A. S. Hatch, withoutthe other claimant of it, Curry, being before the court; for it may be that on the evidence in the attachment-case the court may hereafter decide, that the makers of this note should pay the amount of it to the attaching creditor, Curry. It would be obviously improper in this court to express any opinion as to the law or facts on. this point, whether the makers of this note are responsible to A. S. Hatch, the alleged holder of it, or to Curry, the attaching creditor.

The error of the circuit court was in expressing such an opinion and deciding the case when one of the parties, Curry, was not before the court. For this reason the decree of the circuit court complained of must be reversed

The appellants’ counsel also insists, that as the summons and return have been copied on the record by the clerk, and it appears from the sheriffs return that .Pliny Fisk was not found, and had not been served with process; and as he never filed any answer, the court in this decree erred in reciting that process was served on all the defendants, and in taking the bill for confessed as to him. The appellees insist, that this recital in the decree is conclusive of the fact that process was served on him. He is before this court as an appellee who has been served with the process issued by our clerk, and the case differs but little from the case of Arnold v. Arnold, 11 W. Va. 457, except that in this case the parties not served with process, so far as appears, but who were recited in the decree below to have been served with process, appealed in the Appellate Court and filed a waiver of regular service in the court below and a release of errors there, and asked an affirmance of the decree. In that case the decree below was affirmed. Whether on this point this case can be distinguished from that, it is useless decide. In this case the defendant, Fisk, has not asked *99of this court an affirmance of this decree ; but the plaintiffs’ counsel, as his attorney, admitted the service of the process issued by our clerk; and I presume that he is of course authorized to waive service of the process against him in the circuit court; and when this cause is remanded, he will appear for him and waive service of process, or file an answer for him, and thus put this question at rest.

The decree of the circuit court of Kanawha county of June 15, 1878, must be reversed, set aside and annulled; and the appellants must recover of the appellee, A. S. Hatch, their costs about their appeal in this court expended ; and this cause must be remanded to the circuit court of Kanawha county with directions to grant leave to the plaintiff to amend his bill in a reasonable time, to be fixed by that court, and to make Charles B. Curry a party defendant in said cause; and with further directions to proceed with said cause according to the rules and principles laid down in this opinion, and further according to the rules and principles governing courts of equity.

The other Judges Concurred.

Degree Reversed. Cause Remanded.

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