10 Mo. 444 | Mo. | 1847
delivered the opinion of the Court.
In February, 1845, Ransom, the appellee, obtained a judgment in a Justice’s Court against Richard Warren. A transcript of the judgment being afterwards filed in the Circuit Court, in December following an execution issued thereon and was placed in the hands of the sheriff. On the 3rd October, 1845, Warren recovered in the Court of Common Pleas a judgment against Ransom, the appellee, which was assigned on the 16th of the month to the appellants, who caused execution to issue thereon on the 14th November following. The appellee was seasonably notified of the assignment to the appellants. On the 12th February, 1846, both of the executions being in the hands of the sheriff, the Circuit Court directed him to set off one against the other, without regard to the interests
The question in the case arises under the 2nd subdivision or clause of the 10th section of the act respecting set-off. The sheriff being authorized by a preceding section to set off executions' against the same parties, that subdivision prohibited it where the sum due on the first execution had been lawfully and in good faith assigned to another before the creditor in the second execution had become entitled to the sum due thereon. The word “thereon,” at the' end of the subdivision, evidently refers to the sum due on- the first execution,-and the appellee could not have been entitled to it until the execution was placed in the hands of the sheriff; and as, at that-time, it had been lawfully and in good faith assigned away to others, under the law he was not entitled to it. Judge Napton concurring, the judgment will be reversed.
