Jones v. Moody

59 Miss. 327

• Court: Mississippi Supreme Court
• Decided: October 15, 1881
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The ground on which a junior attaching creditor may procure the vacation of a senior attachment is that it operates a fraud on him. Henderson v. Thornton, 37 Miss. 448. He cannot take advantage of mere irregularities in the prior attachment, though constituting good grounds for objection by the defendant, who may waive anything which is no injustice to other creditors. Ward v. Howard, 12 Ohio St. 158; Drake on Attachment, §§ 262, 273, 274. There was a valid debt, and there was cause for attachment, and although the note had been indorsed by Moody, the payee, and delivered as collateral security to Merkel, his creditor, he had an equitable interest in it, and the mere fact that he sued out the attachment in his name, when it should have been in the name of Merkel, who held the legal title, does not furnish ground for a court of chancery to wrest from him the advantage obtained, when it appears that substantial justice has been done.

Decree affirmed,.