Day v. Zimmerman

The opinion of the court was delivered, by Williams, J. The law is well settled, that a promissory note is liable to be attached before maturity in the hands of the maker at the suit of a creditor of the payee. Though not due, it is a debt within the meaning of the Attachment Laws, and, therefore, as between the payee and attaching, creditor, it is bound by the service of the attachment on the maker; and if, after being attached, it remains in the hands of the payee until maturity, it is bound by the attachment as against all persons into whose hands it may thereafter come. But the attachment is unavailing as against a bond; fide holder, or endorsee for value, to whom it has been transferred, before maturity, without actual notice of the attachment. The doctrine of notice by Us pendens is not appli-' cable to such a case: Kieffer v. Ehler, 6 Harris 388; Hill v. Kroft, 5 Casey 186; and, therefore, a subsequent holder is not affected with constructive notice of the attachment. In the case before us, the evidence shows, that Tohe & Depue purchased the note in controversy of the payee at their banking-house in Easton, shortly before its maturity, for $5450, without any notice of the attachment whatever. The fact, that they had heard that the payee had failed and gone West, was not sufficient to put them upon inquiry as to his right to dispose of the note. It was no notice of the attachment, nor of anything from which it could be inferred. It is clear then, that they took a good title to the note as against the plaintiff’s attachment. There was no evidence that the defendant assisted the payee in selling the note, or that he knew of his intention to dispose of it until after the sale had taken place. Nor was there any evidence, that the defendant colluded with the payee for the purpose of enabling him to hinder or defraud his creditors. So far as the defendant’s cross-examination shows, and this is all the evidence on the subject, he did not purchase the property for which the note in part payment was given, for less than its value, nor with intent to cover it up and conceal it from the payee’s creditors. The defendant was clearly entitled under the uncontradicted evidence in the case, to an affirmative answer to the points which were submitted by his counsel. Instead of declining to charge as requested, the [75] court should have instructed the jury, that there was no evidence that the defendant, in any way, assisted the payee in passing the note to Yohe&Depue; and if they bought it without actual notice of the attachment before its maturity, the payment to them by defendant was a good and valid defence to the attachment, and their verdict must be for the defendant. It is clear that under the law' and the evidence, the plaintiff was not entitled to recover. Judgment reversed, and a venire facias de novo awarded.