Opinion
10-21-1816
Wilson v. Davisson
Wickham for the Appellant, Nicholas for the Appellee
Argued October 16, 1816.
Daniel D. Davisson assignee of Isaac Davisson brought suit on a bond against Benjamin Wilson, Jr., who pleaded that, before notice of the assignment, the effects of the assignor were attached in his, the defendant's hands, and a decree entered that he should pay the debt to the attaching creditor, on bond and security being given in the usual form; --and that, bond and security being afterwards given, he had paid the debt to the attaching creditor. To this plea the plaintiff demurred. The defendant also pleaded payment; and issue was joined on both pleas.
The case made by the declaration, first plea and demurrer, was, that the bond given by Wilson was dated December 24th, 1807, payable four years after date, and assigned to Daniel D. Davisson, on the 21st of February, 1808. The suit in Chancery, to attach the debt in the hands of Wilson, was instituted on the 22d of November, 1809, against Isaac Davisson and others; on which day it was decreed that Wilson should pay the amount of the note to the plaintiff in equity, when due, upon his giving security to return the amount to such persons as the Court should thereafter direct. At that time there was no notice of the assignment. Bond and security according to the decree was given on the 3d of May, 1813, after this suit had been brought; and, on the same day, Wilson paid the amount of the bond to the attaching creditor.
Upon the Demurrer, the Superior Court of law gave judgment for the plaintiff, without any trial of the plea of payment; whereupon, the defendant appealed.
Judgment reversed, and cause remanded.
Wickham for the Appellant, contended, 1st, that the decree in favour of the attaching creditor having been entered before notice of the assignment, the garnishee was bound to perform that decree: and the remedy of the assignee, if any, was against the attaching creditor, on his bond to refund: and 2dly that no final judgment ought to have been given against the defendant, until the issue on the plea of payment had been tried.
Nicholas for the Appellee insisted, 1st, that the bond having been assigned before the suit was brought to attach the debt, it was not a debt due to Isaac Davisson; and therefore that the law on the demurrer was for the plaintiff; --2dly, that the Decree under which the Appellant made the payment, was interlocutory only, and might have been set aside, on the circumstances of the case.
Wickham in reply. It was determined by the Decree, that it was a debt belonging to Isaac Davisson, and, as such, was directed to be paid to his creditor. Every decree of a Court of competent jurisdiction is presumed to be right until the contrary appears. An attachment regularly laid, and regularly discharged, is certainly a satisfaction of the debt. The seven years reserved, are for the benefit of the absent defendant. The garnishee is bound to pay upon the Court's order.
The case is analogous to that of an Executor's pleading former judgments; which plea, if demurred to, is a bar; the only way to controvert it being to reply that such judgments were obtained by fraud or connivance.
OPINION
Judge Brooke pronounced the Court's opinion.
Monday, October 21st, 1816, JUDGE BROOKE pronounced the Court's opinion that the Superior Court was correct in sustaining the demurrer of the plaintiff to the plea of the defendant, but erred in entering the Judgment before a trial of the plea of payment.
Judgment reversed, and cause remanded for a trial to be had therein of the plea of payment.