Ireland v. Smith

1 Barb. 419, 3 How. Pr. 244

Opinion

Harris, J.

The transaction between the defendant and Sharp amounted to an equitable appropriation, if not to a legal transfer, of the defendant’s salary for the month of August. The officer upon whom the draft was drawn had notice of such appropriation; and by receiving the draft from Sharp he must be deemed to have assented to the payment. If the endorsement of the check was necessary to put Sharp in possession of the fund to which he was already entitled, the defendant was bound to make such endorsement. If he had refused, he might have been compelled to do so. The defendant had no right to that portion of his salary. To have received it would have been a gross fraud upon Sharp. Had it come into the hands of a receiver appointed in this suit, I think it would have been the duty of this court to direct it to be paid to Sharp. The plaintiff has come to a court of equity for assistance in the collection of his debt. And the court, while extending its aid to him, will also see that the equitable rights of others are protected. Although the money then due had been earned by the defendant, and although his endorsement upon the check was required according to the regulations of the custom house, before the money would be paid, yet at the time the injunction was served, .the defendant had no right to collect the money, or if he had received it, to appropriate it to the payment of his debts or otherwise to his own use. There is nothing then in the act of endorsing the check which amounts, even constructively, to a violation of the injunction, and the motion must be denied with costs.

(a)

See Browning v. Bettis, (8 Paige, 569;) McCown v. Dorskeimer, (1 Clarke’s Rep. 144.) In Hudson v. Plets, (11 Paige, 180,) it was held that the recovery of a judgment by a defendant in a creditor’s suit after the service of the injunction, for a tort done to his exempt property, and even the collection of the amount of such judgment by him, would not constitute a breach of such injunction; inasmuch as the creditor had no interest whatever in the property of the debtor which was exempted by law from sale upon execution. So in this case, the amount of the salary having been assigned to another person previous to the filing of the creditor’s bill, the creditor had no interest in it and could not reach it by his bill. He therefore was not injured by the act of endorsing the check.