Foster v. White

9 Port. 221 | Ala. | 1839

ORMOND, J.

We cannot perceive on what principle the judgment of the court can be successfully assailed. The defendant states, in his answer, that he has received notice of the transfer of the notes made by him to Rice, which notice was given by Rice before service of the garnishment, but without informing him to whom the notes were transferred, further than that they were transferred to his creditors. That since then, aud before the filing of the answer, he had received particular notice to whom the notes were transferred. The answer is made on the twenty-first July, eighteen hundred and thirty-eight, and has an endorsement, stating that it is filed as to the January term, nunc pro tunc.

The answer cannot operate so as to affect the rights of other persons, by the fiction of filing it in fact at the July term, and endorsing on it, that it is to be considered as if filed six months before. It must be considered as filed .at the time it was in fact filed, and if the defendant had not then disclosed the notice he had received of the transfer of the notes, a judgment against him, as garnishee, would not have protected him against a recovery on the notes — (See Colvin vs. Rich, 3 Porter, 175, where this point is expressly decided.) It was not only his privilege, but it Was a duty imperative on him, at any time before final judgment, to make known that he had received notice of the transfer of the notes.

It is not necessary, in this case, to consider the question, whether any notice is necessary to protect the interest of the holder of a note, made negotiable and payable at bank, from the effect of a garnishment against the maker, as notice was, in point of fact, given.

The judgment of the court below is affirmed.