Sangster v. Butt

Davison, J. This is an action by George Butt against Sangster and Gish, upon a promissory note for the payment of $200, in currency. The note bears date December 29, 1854, and was payable at four months, to one Jeremiah Shade, who, on July 27, 1858, assigned it, by indorsement, to the plaintiff. The defendants answered by four paragraphs. As the first, second and third make no point in the case, the fourth alone will be noticed. The fourth paragraph alleges, “ that before the assignment of the note in suit, and before notice thereof to the defendants, one John Hender son, by the consideration of Isaac O. Iloh, a justice of the peace, recovered a judgment against the defendant Sangster, as garnishee in a suit of attachment against Shade, the payee of the note. A certified transcript of the proceedings and judgment in the attachment suit is herewith filed, and made a part of this answer, marked A., which -judgment amounted to $97, and which sum is a judgment against the note sued on, for which the defendants demand' judgment; he, Sangster, having before the commencement of this suit, paid the same to Henderson, the attachment plaintiff.’7 In the proceedings referred to, and made a part of this answer, there is the following: “ April 1, 1856. This day came William A. Sangster, and filed his certified statement, showing that there was then in 1ns hands $800 of uncurrent [355] money, worth $620, belonging to Jeremiah Shade, the defendant in the attachment.” And further, the proceedings say, that the justice, upon Sangster's statement of the effects in his hands, rendered judgment against him as gaxnishee, for ninety-five dollars and sixty-three cents. A demurrer to this fourth paragraph was sustained, and the defendants excepted. Tyler and Ristine, for the appellants. W, IL Mallory, for the appellee. The demurrer is well taken. The defense does not show, affirmatively, that the demand set forth in the complaint,, and that adjudicated upon in the suit before the justice,, fire identical; the former is by note for $200, in currency, and the latter for $800, uncurrent money. As the judgment against Sangsler, as garnishee, does not appear to have been given upon the claim secured by the note, the demurrer was correctly sustained. Per Curiam. — The judgment is affirmed, with costs.