16 Pa. 387 | Pa. | 1851
The opinion of the court was delivered June 30, by
The key of the case is that Simon Lingle; the husband of the recognizee, never was the owner of the money secured by the recognizance. The defendant’s payment of his debt to Montgomery’s executors could not be set off as money paid to his use in the character of a surety in the single bill, or pleaded in bar as payment of the recognizance in the character of a garnishee — as the -latter certainly not, for he was bound to contest every inch of the ground, and payment before judgment against him could be no defence to a suit on the attached security. Then as to the allegation of fraud in the subsequent assignments, Lingle entertained a groundless fear that his creditors might reach the money secured by this recognizance, and, to prevent them, assigned it. He certainly intended to defraud them, but failed, not for want of will, but for want of capacity. He parted with nothing that was accessible to them; for so long as he saw fit to leave the money secured by the recognizance outstanding, they could not touch it. Nor was his wife’s consent before a judge of the Orphans’ Court, that he should have it without settling any part of it on her, equivalent to a reduction of the money to possession. At most, it could be the removal of an impediment. But there was no order for a settlement at the time of the partition, and the subsequent assent to dispense with it was superfluous and a nullity. The effect of the assignment to Mrs. Stoner, then, was
Judgment affirmed.
