Morgan v. Lowe, Ebbets & Co.

5 Cal. 325, 1855 Cal. LEXIS 128

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Murray, C. J., delivered the opinion of the Court.

Heydenfeldt, J. concurred.

The Court below properly instructed the Jury, that if the plaintiff was the assignee in good faith, aud for a valuable consideration, of the invoice of goods in controversy, and had demanded the same, within a reasonable time after the arrival of the vessel, and tendered the balance of the purchase money, that no notice of such assignment was necessary to charge the defendants.

In a case where the assignee had allowed the party to answer the attachment, and the money to be made by the process of the Court, the rule would be different. Such is not the fact in the present case. The defendants have undertaken to adjust this matter between themselves and the attaching creditors, to the absolute exclusion of the plaintiff’s rights.

The fifth section of the Practice Act of 1851 docs not extend to a case like the present, and the authorities cited from other States being-based on express statute, have no application.

Judgment affirmed, with costs.