Choate v. Noble

31 Mo. 341

• Court: Supreme Court of Missouri
• Decided: January 15, 1861
• Status: Published

Opinion

Napton, Judge,

delivered the opinion of the court.

This is a proceeding by the sheriff under the forty-first section of the attachment law. The action is on a note given by the defendants to one Roberts, and attached by certain creditors of Roberts. There was a demurrer to the petition, because the plaintiff doos not allege that he had given any notice, written or printed, to the defendants, as required by the thirty-ninth section. The demurrer was overruled, and, we think, rightly. The object of that section is to prevent the debtor from paying over his indebtedness to the attached creditor, and if he does so, without notice or without knowledge of the attachment, he is protected. But this is a matter of defence and not a ground for demurrer. The thirty-ninth section of the act is directory, and if the debtor has not in fact paid any portion of the note sued on to the payee, the notice could be of no use to him. It is not a prerequisite to the maintenance of the action.

Judgment affirmed;

Judge Ewing concurs. Judge Scott absent.