majority"> Pearson, O. J.

The note sued on was executed on the 8th of January, 1869, payable one day after date. It was endorsed to plaintiff on the 1st of April, 1869. Being overdue, the plaintiff took it, subject to all equities and liens that had attached to it in the hands of the assignor at the date of the assignment. But subject to this the title passed to the plaintiff, and the defendant from that time became his debtor, and no longer owed the payee anything.

It follows, that Bobert Henry, plaintiff in the attachment sued out afterwards, to-wit: on the 13th of April, 1869, acquired no hen on the note, and it was the folly of the defendant when summoned as garnishee, to admit an indebtedness to the payee upon a negotiable note which had in fact been assigned to the plaintiff, twelve days before.

*203 The admission should have been qualified. He was only-indebted to the payee, provided the note had not been assigned. He had a right, and ought to have insisted upon the production and surrender of the note before judgment, against him as garnishee, or else to have required indemnity, as in case of a lost note.

He may blame himself for submitting to a judgment as garnishee, when in fact he owed the payee nothing.

This is clearly settled by the case Myers v. Beeman, 9 Ired. 116, where the subject is fully discussed, and by the case Ormond v. Moye, 11 Ired. 564. In that case the garnishment was served before the assignment. And the Court, approving Myers v. Beeman, put the plaintiff’s right to recover on the ground, that although the garnishment was served before the assignment, yet as the assignment was-made before the note fell due, the plaintiff acquired the title, discharged from the lien created by the garnishment of which he did not have notice.

There is error.

Ter Curiam. Venvre de novo..

Citation profile

How this case has been treated — in progress