64 Pa. 63 | Pa. | 1870
The opinion of the court was delivered,
— The result of the issue between Rowe and Rushton et al., settled, so far as our inquiry can go in this case, that there was in the hands of the latter, due to L. A. George & Co., the sum of $1664.05, as of the date of the verdict on the scire facias against the garnishee Rushton. That case is not before us now, and we cannot regard any argument predicated of the idea that the debt due by Rushton, secured by mortgage, had passed prior to the verdict by assignment to anybody else. The time for the consideration of any question of that kind was on the trial, or on a review of the trial of that case. It is entirely out of the case in hand. As the Act of the 13th of June 1836 makes it the duty of the jury trying the issue between the attaching creditor and garnishee, to find what goods or effects, if any, were in the hands of the latter at the time of the service of the attachment, and the value thereof, we are to presume that this was done in proper form, showing that the mortgage of the garnishees was attached and unpaid, and was of the value of the sum found, viz., $1664.05. This was a seizure of the security as belonging to L. A. George & Co. To make that available to the creditor it must be sued upon, and the law regards the attachment of it as an assignment to the attaching creditor. This was not controverted by the counsel for plaintiff in error. But it is alleged that a misnomer of a member of the firm of L. A. George & Co., in the title of the firm in the scire facias against the garnishees, destroys the identity of the firm in that case with the firm described in the mortgage, and therefore the plaintiffs here are not the assignees of the mortgage by operation of law, and not entitled to sue. We
In charging as the learned judge did, that if the jury believed the evidence, no sufficient defence was made out, and the plaintiff was entitled to recover the principal sum secured by the mortgage with interest, we must presume that he did it in view of the whole testimony, and that the delay was owing to the defendant Rushton, and not occasioned at all by adverse contestants for the money. This appears in the case, and was uncontradicted, and the judge committed no error in assuming the facts to beso, and in charging that interest was to be paid, according to the express contract in the mortgage, and was recoverable up to the time of trial. If it had appeared anywhere that the defendant stood ready to pay the