Covert v. Nelson

Dewey, J. Nelson, the assignee of Young,- the payee of a sealed note, sued Covert, the maker, in debt on the note. The defendant pleaded, that one Vanarsdale sued out a writ of domestic attachment against Young, and caused the defendant to be summoned as a garnishee; that he admitted his indebtedness to Young on the note which is the foundation of this action; that Vanarsdale recovered a judgment against Young, and also a judgment against the defendant, as garnishee, on the note, which judgment remained in full force, &c. The plea sets out the proceedings in attachment, which appear to be regular, and avers that the defendant had no notice of the assignment of the note to the plaintiff, until after the recovery of the judgment against him (the defendant) as garnishee. The plaintiff demurred generally to the plea; the demurrer was sustained; and a final judgment rendered in favour of the plaintiff. We think the plea constituted a goodi bar, and that the demurrer should have been overruled. The statute authorizes a general and personal judgment against a garnishee in attachment; and such is the judgment rendered against the defendant. If that judgment is not a bar to this action, the defendant will be compelled to pay the same debt twice. We do not think that, under our statute, though it may be [266] otherwise by the custom of London, satisfaction of the judgment against him, as garnishee, is necessary to enable the defendant to set it up as a defence to this action. See Evans v. Darlington, 5 Biackf. 320. W. W. Wick and L. Barbour, for the appellant. II. and H. Brown, for the appellee. The assignment of the note on which he was garnisheed, and on which this action is founded, can make no difference, because he is entitled, by the statute, to all defences against the note in the hands of the assignee, which he could make against it in a suit by the payee, unless he had notice of the assignment before the matter alleged in defence originated. The plea alleges that he had no notice of the assignment until after the rendition of the judgment against him as garnishee. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.