Tracy v. McGarty

12 R.I. 168, 1878 R.I. LEXIS 53

• Court: Supreme Court of Rhode Island
• Decided: July 16, 1878
• Status: Published

Opinion

Dtmfee, O. J.

We think the exceptions must be sustained and a new trial granted. The assignment preceded the garnishment, and the garnishee, though he had no notice of the assignment before filing his affidavit, did have, as we infer, notice of it in season to ask leave of the court, which doubtless would have been granted, to modify his affidavit so as to make it conform to the facts. Drake on Attachment, § 650. This he ought to have done, and fortunately it is not too late for him to do it, even now, judgment having been deferred. The rule is discussed and settled for this State in Northam v. Cartright, 10 R. I. 19; see also Noble v. Smith, 6 R. I. 446; Drake on Attachment, § 527. Exceptions sustained.