Speight's v. Brock

1 Free. Ch. 389

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

The substance of this case is, that the complainant was indebted to one Wadlington, by promissory note; that a judgment creditor of Wadlington sued out process of garnishment against him according to the provisions of the statute upon that subject, to which he answered, admitting himself indebted to Wadlington; upon which a judgment was entered in favor of such creditor. That at the time of such answer he had no notice that the note had been transferred by Wadlington to a third person. That subsequent to this time the defendant Brock, as the holder of said note, instituted suit thereon, and recovered judgment by default. That he spoke to counsel to defend this latter, case, but did not give him the name of it, and that a judgment consequently passed by default. I infer ffom the bill, although it is not expressly so stated, that the note had been transferred before service of the garnishment ; if this be so, he is clearly bound to pay the proceeds of the note to the holder, although he had no notice of its transfer, at the time of service of the garnishment. The transfer of the note gave the holder an absolute right to its proceeds, and no subsequent act of the maker could divest that right. From the moment of the transfer, the maker became the debtor of the holder, and liable to him alone for the payment of the note. Oldham v. Ledbetter, 1 How. Rep. 43. If such be the true state of the case, there is no ground whatever for an injunction or interpleader as against the defendant Brock. If, on the other hand, the note remained the property of Wadlington at the time of the service of the process of garnishment upon the complainant’s testator, then the judgment upon that process was a clear defence at law, against any subsequent suit upon the note, and the complainant shows no legal excuse, nor indeed any excuse, why he did not make that defence. The statement in the bill, that he did not give his counsel the name of the suit, so far from constituting that active diligence which the law requires, shows a high degree of indifference and gross neglect. The injunction as to Brock must be dissolved, without damages.