27 Wis. 187 | Wis. | 1870
The question as to the right of trial by jury need not be decided, as the judgment must be reversed on the merits, and that question may not arise again. The court below ruled out all other testimony, and held, on the defendant’s own answer or disclosure as garnishee, that his promise to pay the debts due from Corlett to Eallon and Gallagher was within the statute of frauds and void, and consequently that the payments made by him to them after service of the garnishee summons upon him, were unauthorized, and did not discharge him from
And the case of Seaman v. Whitney, 24 Wend. 260, cited and relied on by counsel for the plaintiff, was of a different kind. The question there was, whether, where funds were merely deposited by a debtor with a third person, with directions to pay them over to a creditor in extinguishment of a debt, and there was no agreement, either express or implied, by which the funds became the property of the creditor, so that the debtor did not lose control over them, an action for money had and received would lie by the creditor against the third person with whom the funds had been so deposited. So much as is said, rather obiter
By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.