McKnight v. Welsh

1 Del. Cas. 451

• Court: Supreme Court of Delaware
• Decided: October 15, 1797
• Status: Published

Opinion

Per Curiam.

The plaintiff in attachment has elected under the Act of Assembly [1 Del.Laws 463] that the garnishee should plead. The action by the indorsee upon the notes and the attachment were both brought to the same term, November, 1796. The general question is whether McKnight or Mendenhall is entitled to the money contained in the notes. If McKnight is not entitled, Mendenhall certainly is.

It is said by McKnight’s counsel that the debt, in regard, to the notes, is to be considered as discharged, because the promise of the garnishee has created a new debt to McKnight. But if this promise were rashly or improvidently made by the garnishee, it cannot affect the right of the indorsee. If a garnishee acts unadvisedly, he takes the consequences upon himself.

A garnishee is protected only when he acts pursuant to the directions of the Act of Assembly, and therefore, before condemnation in the attachment, he has no right to pay a debt, and if he promise to pay before condemnation, whether the promise bind him or not, it cannot affect a third person claiming as the indorsee in the present case. But if the promise were made by mistake, it would not seem that it would bind the garnishee. At the time when the garnishee had notice, and even on record by the suit of the indorsee, it is clear from the provisions of the attachment law that he could not rightfully pay the money, and the only question which can remain is whether notice to a garnishee, before he has a right to pay money, is not a sufficient notice. The Act of Assembly which makes notes indorsable provides that after the date of the indorsement the indorser shall not be able to release or discharge the debt. Notice is not directed by the Act; but where from the nature of the case notice is necessary for the security of the maker of the note, and due diligence or circumspection would not protect him without notice, we clearly conceive that notice would be indispensably necessary to charge him a second time. In common cases a payment by an obligor or the drawer of a note is not good after assignment, though he has no notice; because when he makes his payment it is his duty before he pays to see the bond or note and thereby know that it is still in the hands of the person to whom he gave it. And upon a similar principle, as to payments actually made, they are good against the assignee or indorsee without notice, because he should ■examine whether payments were made. And even as to payments and discounts not indorsed, if made or existing before the property is changed, they bind the indorsee, because even as to them he may inquire of the obligor or maker of the note, and, of course, by due diligence may avoid any risk. But if the obligor will pay or trust, or the assignee will accept of assignment without due inquiry and circumspection, in either case, they act at their peril and cannot complain of the consequences.

If, however, as in the present case, a debt were attached after assignment, [and] the assignee, from any cause, should omit to give notice to the garnishee so as to enable him in the regular course of proceedings to defend himself, in [that] ¹ event he should be compellable to pay the money to the plaintiff in attachment. Justice would require, and the principles of law would warrant, us in saying that the recovery in attachment would be a bar to the suit of the assignee. But the doctrine which we have held puts an end to the present case. The garnishee had notice before he had a right to pay, and before he had pleaded. In relation to the plaintiffs, no question can arise, and in regard to the garnishee it cannot be allowed him to complain in a case where ordinary care was sufficient for his security.

There was a verdict for the plaintiff, Mendenhall, indorsee etc., and against McKnight, the plaintiff in the attachment.

1 Manuscript reads “and in the event” instead of “in that event."