majority">CLAY, J.

The question presented by this record is, whether the judgment nisi, set forth in the 5th plea, and the payment of the money under it, constitute a good bar to the plaintiff’s action, as endorsee ? It cannot be pretended that this judgment was conclusive ; that any action could have been sustained upon it against the garnishee ; or that any execution could have issued under it, against him. The course of proceeding required by our statute, in such cases, when .the garnishee, summoned in any case fails to appear, is for the court “ to enter a conditional judgment against him, upon which a scire facias shall issue against such garnishee, returnable to the next term of the court, to show cause why final judgment should not be entered against him; and upon such scire facias being duly executed and returned, if such garnishee shall fail to appear, according to the mandate thereof, and discover on oath in manner aforesaid,-the court shall confirm said judgment, and award execution for the plaintiff’s whole judgment and costs.” [See Aik. Dig. 42, § 20.]

The defendant in the present case pleads that judgment nisi was rendered against him, at the suit of Hart & Bosworth, at the spring term of the circuit court, 1840, but he does not aver that any further proceedings thereon were ever had; either that the scire facias, required by law, was ever issued, or served on him, or that any final judgment was ever rendered against him — although the present action was not commenced against him till af-terwards, and, as the declaration was not filed till September term, 1840, he probably did not file his said plea (at all events the case could not have been tried) till the spring term, 1841. If scire facias had properly issued against the defendant as garnishee, at the suit of Hart & Bosworth, it should have been re-*486tamable at the fall term, 1840 — and, if not issued before that time, the proceedings in garnishment were discontinued. The writ in the present case, was served on one of the defendants on the 8th of August, preceding the return day of the scire facias; and, consequently, they had notice of the assignment of their promissory note before they could have answered, and before any final judgment could have been rendered against them.

In the case of Colvin v. Rich, [3 Porter, 175,] this court held, that “ should the maker of a note, or bond, with the knowledge, before he made his answer upon a garnishment, that it had been transferred, acknowledge in his answer, that he owed the debt to the payee, or obligee, he would be as clearly and justly liable to pay the whole amount to the assignee, as he would, after a voluntary payment, with such knowledge, to the payee, or obli-gor himself.”

In the case of Foster v. White, [9 Porter, 224,] the case of Colvin v. Rich was referred to and recognized, and the court said: “ It was not only his (the garnishee’s) privilege, but it was a duty imperative on him, at any time before final judgment, to make known that he had received notice of the transfer of the notes.”

The statute protects the rights of the assignee, at least, until the garnishee answers — and, at any time before such answer, he may give notice of the assignment to the maker of the note, and secure himself against the claim of his assignee’s creditor. The assignee in such cases has no notice, and is usually absent; and his rights should not be affected by extending the terms of the act, by construction.

These views lead us to the conclusion, that the 5th plea, relied on by the defendants in the court below, was insufficient, and that the demurrer thereto was rightfully sustained.

Judgment affirmed.

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