Smith v. Blatchford
2 Ind. 184
Ind.
1850
Check Treatment
Blackford, J.

This was an action of assumpsit commenced in April, 1848. The suit was brought by Richard M. Blatchford against Thomas M. and Charles C. Smith.

The declaration states that the defendants, on the 11th of January, 1847, at Cincinnati, state of Ohio, to-wit, at, &c., made their promissory note, by which they promised to pay, six months after date, to the order of certain persons using the name and style of H. S. Blatchford and Co., the sum of 179 dollars; that afterwards, on the same day, and before the note became due, at Cincinnati aforesaid, to-wit, at, &c., the payees, by their said name and style of H. S. Blatchford and Co., assigned the note to the plaintiff. The declaration sets out the statute of Ohio relative to promissory notes, which statute enacts, inter alia, that notes like that here declared on are negotiable by indorsement; that the indorsee may sue in his own name, and that if the indorsement be made before the *186note falls due, the maker may claim against the indorsee any payment made to the payee before the indorsement, of which payment the indorsee had notice before the indorsement. The declaration then alleges, in the usual form, the defendants’ liability to pay the note, and their non-payment of the same.

The defendants pleaded in abatement as follows: That before they had notice of the assignment of the note, and before the commencement of the action, to-wit, on the 27th of March, 1847, one Isham Keith commenced an action of foreign attachment, in the Wayne Circuit Court, against the payees of the note, for a certain debt of 271 dollars, due by the payees to said Keith; that, on the day last mentioned, said Keith filed his affidavit, setting forth, among other things, that Thomas M. Smith (one of the now defendants) was indebted to said payees by note, upon which affidavit a summons was issued, directing the sheriff of Marion county to summon said Thomas M. Smith to appear as garnishee, &c., to answer, under oath, as to the rights and credits of the said payees in his hands; that said summons was served before the defendants had notice of said assignment, and before the present action of assumpsit was commenced, to-wit, on the 4th of April, 1847; that said writ of foreign attachment was still pending; and that the debt for which the attachment issued was the same debt now sued for.

This plea was sworn to by the defendants.

There was another plea which requires no further notice, as it is similar to the one above set out.

General demurrers to the pleas, and the demurrers sustained.

Final judgment for the plaintiff.

The plea, which we have above described, is a plea of the pendency of a suit, previously commenced, for the same cause. The pending suit pleaded, which is an attachment, is a suit inter partes and not in rem; and it can, therefore, only affect the parties in it and their privies. Mankin v. Chandler, 2 Brockenb. 125. Whether the pendency of an attachment can, in any case, be pleaded in *187abatement, is very doubtful. That it cannot, is expressly decided in Crawford v. Slade, 9 Alabama, 887. According to that case, a pending attachment is a cause only for suspending the suit to which it is pleaded until the attachment is determined. The plea before us, however, will be examined, as if there were no question but that the matter of it, if otherwise unobjectionable, might be pleaded in abatement.

The fact that the plaintiffs in the two suits are different is, prima facie, an objection to the plea. To overcome that objection, the plea should show7 that the debt due by the note was subject to the attachment-suit. It appears by the pleadings, that the note ivas assigned before the issuing of the attachment. But the defendants contend that, as they had no notice of the assignment until after the garnishee was summoned, the debt due by the note was subject to the attachment. That argument is based on the statutory provision, which says that the maker of a note may set up any legal or equitable defence, which he had against the payee before notice of the assignment. R. S. 1843, p. 577. We have heretofore held, under a similar statute, that, where an obligor, summoned in an attachment-suit as garnishee, answered that the obligation was assigned before he was summoned, the attachment-plaintiff- could not reply that the garnishee had no notice of the assignment until after he was summoned. Smith v. Wright, 6 Blackf. 550. In Massachusetts, an assignment of a note operates, per se, as an equitable transfer of the note. Notice is, indeed, indispensable to charge the debtor with the duty of payment to the assignee; so that if, without notice, he pays the debt' to the assignor, or it is recovered by process against him, he will be discharged from the debt. But an arrest or attachment of the debt in his hands by any creditor of the assignor, will not entitle such creditor to a priority of right, if the debt- or receives notice of the assignment, pendente lite, and in time to avail himself of it in discharge of the suit against him. Story’s Confl. of Laws, s. 396. In the case before us, the commencement of the assignee’s suit was notice *188to the defendants of the assignment of the note, and the plea shows that the notice was in time to have enabled the defendants to defeat the attachment.

O. H. Smith, for the plaintiffs. 8. Yandes, for the defendant.

But even if the plea would be valid in a case governed by our statute, that circumstance would not benefit the defendants. The note in question was made and indorsed in Ohio, and the law of that state, which is set out in the declaration, must govern the case. Burrows v. Hannegan, 1 McLean, 315. — Williams v. Wade, 1 Metcalf, 82.— Ycatman v. Cullen, 5 Blackf. 240. The Ohio statute, as to notes, is similar to the law-merchant; and there can be no doubt but that where, under the law-merchant, a promissory note is assigned before it falls due, the assignee’s suit on the note is protected against such pleas as the one before us.

The defendants refer to the case of Covert v. Nelson, 8 Blackf. 265, but we need not now examine that case, as it was decided under our statute and is not, therefore, applicable.

The declaration is objected to, because the names of the assignors composing the firm are not set out. That objection is not tenable. Stout v. Hicks, 5 Blackf. 49.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.