3 Ky. 160 | Ky. Ct. App. | 1807
Upon this case, the circuit court of Fleming (after the abolition of the courts of quarter sessions) gave judgment for the plaintiff, for damages and costs. To reverse which judgment, this writ of error is brought;
The errors assigned in this cause, are directed rather against the reasons given by the circuit court for their judgment, than against the judgment itself, Although the court may have travelled out of the record before them, into the record of the proceedings on the attachment, which did not belong to the case (and has been improperly certified along with the record in this suit), yet this court will not therefore reverse the judgment, if it is substantially correct and warranted by law. It is better to do right from wrong inducements, than to reverse that which is right because it was wrongfully en
;gy our statute law
By the assignment on the first of June, the right of Mullins against Stockton was gone, although not vested in Hall, until the second of September. The statute has not prescribed any manner; in which notice shall be given of an assignment, nor required any notice to be given ; but only protects the equity of the obligor, accruing before notice.
Whether we view the case agreed; the averment of notice in the declaration, and the defendant’s plea thereto ; or the writ itself, as executed; the defendant had an unequivocal notice of the assignment, before the oath Was administered to him as a garnishee ; whereby the plaintiff’s right became complete, unless the previous summons against Stockton, in the attachment against Mullins, or the subsequent order of the court, against the garnishee, overreaches that right;
But the right of Mullins against Stockton, to demand the contents of the note, was gone by assignment; and it cannot; with any propriety;be said, that the law would permit the creditor of Mullins to make a demand, and accept on his account, from Stockton, that which, if done by Mullins himself, would have been wrongful and fraudulent.
The garnishee having notice of the assignment, by suit actually commenced against him, before he was sworn, was bound to make a disclosure to the court, as
If he failed to do so, whereby judgment was rendered against him, he must be considered as the willing victim, entitled to no greater consideration, than if he had, after notice, voluntarily paid to Mullins. But if he did disclose the assignment, and the court did, notwithstanding, enter judgment against him, such judgment was erroneous ; against which, the garnishee might have protected himself, by having his confession truly and at l,i rge, placed of record ; whereuponhe might have reversed the judgment by writ of error.
Judgment affirmed.
For the proceedings on attachments, fee cits of 1796-7, p. 124, § 5, j Brad. 357 — acts of 1803, ch. t3 § 13, p. 10 — acts of iSo^ch. 76, p, 103*
6 o', (a) A£ts of —al/of i fef 1798, ch. 2?, £. 60, i Brad.