McGehee v. Cherry

By the Court. Lumpkin, J. delivering the opinion. [1.] This bill of exceptions is based upon the idea, that a judgment lien attaches upon promissory notes, and that they are liable to be seized and sold under execution. We apprehend this to be a mistake. Bonds, notes and bank shares, until made so by Statute, and other choses in action, are not the subject of levy and sale by fi. fa. Francis vs. Nosh, 7 Geo. II. K. B, cited in Com. [552] Dig. tit. Execution, c. 4. Bing, on Judg. 111. Ingalls vs. Lord, 1 Cowen, 240. McClelland vs. Hubbard, 2 Blackf. 361. Rhoads vs. Megonigal, 2 Barr. 39. Our Garnishment Acts aro all founded upon the fact \hdXchoses in action cannot be levied on and sold by the Sheriff; and the same principle that a chose in action is not the subject of levy and judicial sale, is recognized in our Attachment Law. When the garnishee returns that he has in his hands, notes, bonds and other evidences of debt belonging to the absent debtor, the same arc directed to bo deposited with the Clerk; and after the plaintiff shall have established his demand, these dioses in action thus surrendered, are not tobo sold as other property, but turned over to the agent or attorney of the creditor, to be collected, and the proceeds, or so much thereof as shall be needed for that purpose, applied to the discharge of the plaintiff’s debt. Prince, 33. [2.] The notes, then, which were held by the defendant, Cherry, on Horn and Ball, he had a right to transfer to Robinson as the agent of his other creditors, in payment of their demands ; and Robinson having given his receipt to the wife of Cherry for these notes, to be thus applied, before he was summoned, no judgment could go against him. Let the judgment stand affirmed.