Ormond v. Moye, 33 N.C. 564, 11 Ired. 564 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 564, 11 Ired. 564

FLETCHER ORMOND vs. WYATT MOYE.

JVhere one is summoned as garnishee in an attachment, who owes a not® which is negotiable; if he chooses to stand upon his rights, no judgment can be-taken against him, without proof that the absconding debtor still holds the note, or had not assigned it, by endorsement before it was due, for, otherwise, it does not appear that he is indebted to the absconding debtor.

However it maybe, as to notes payable on demand, whether or not they are considered over-due until demand made; it is certain that a note, payable “at sight” or “when presented,” is not due until it is presented.

The case of Myers v. Beeman, 9 Ire. 118, cited and approved.

Appeal from the Superior Court of Law of Greene County, at the Fall Term 1850, his Honor Judge Ellis presiding.

This was an action of debt. The plaintiff declared, as the indorsee of a promissory bond, of which the following is a copy : “$160, I promise to pay Benjamin C. D. Ea. son or order, at any time after ten days from this date, when presented, one hundred and sixty dollars, value of him roc’d. April 24th, 1S48.” Signed, “Wyatt Moye,” and sealed: Indorsed, “I transfer the within note to F. Ormond for being value received, May 29th, 1848.” It was admitted that the indorsement should, in fact, have been dated on the 29th of June 1848. The defendant pleaded that there was no indorsement, and, specially, that he was summoned as garnishee by the Sheriff of Ed-gecombe County on theslst day of May 1848, to appear before the Justices of the County Court of Edge'comb on the 4th Monday of May 1848, in a suit of attachment at the instance of Joshua Speight against B C. D. Eason, and that on the said 4th Monday of May he filed his answer in the said cause, and pleads the proceedings in the said suit by attachment, the judgment therein and his satisfaction of the same. The defendant produced a copy of the record in the attachment suit, referred to in his plea, from which it appeared that the defendant stated in his garnish’ ment, that on the 24th of May 1848, he executed his note to the said Eason for one hundred and sixty dollars payable ten days after date — that he knows nothing of the said note since it was executed — that the said Eason left his residence on the same day, as is reported and believed, and went out of the State, and has not since returned— that, knowing from the negotiable character of the said note, a good and unquestionable title to the same may be procured by indorsement, and that, if the same has been transferred before it became due, he may be compelled to pay the said note to the holder, when presented, he prays the Court for protection against such liability of double responsibility. It appeared further from the said transcript, that, upon this garnishment,judgment was subsequently rendered against Moye for the amount of the said note and interest; and it appeared by other evidence, that the judgment had been satisfied.

The defendant contended, and prayed the Court to instruct the jury ;

1st. That, if they believed the testimony, the plea of the defendant was sustained, and the plaintiff could not recover on the issue.

2nd. That the bond declared on was over due and dishonored, at the time of its transfer to the plaintiff on the 29th of June 1818, and that it was subject, in the hands of the plaintff, to all the defences, which would have been good against the payee; that the proceedings under the attachment of Speight operated to give to Speight a lien upon the sum, owing by the defendant upon the bond, either from the time of the service of the summons on the defendant, on the 1st of May IS 18, or from the time of the defendant’s answer as garnishee on the 4 th Monday of May 1S48; that, after that period. Eason could not transfer the bond, so as to give his transferee any better title than lie had himself; and that the proceedings under the attachment would have been a defence to a suit by Eason, and were a defence to the suit of the plaintifF.

3rd. That, if any demand was necessary, after the expiration of ten days from the date of the bond declared on, in order that the bond, remaining unpaid, should be considered dishonored, the law would, or the jury might, infer a demand and refusal prior to the time of the indorsement, to-wit, the 29th of June 1848; and that the suing out of the attachment on the 27th of April 1848, and the no. tice to the defendant, as garnishee, on the 1st of May 1848, were equivalent in law to a demand and refusal.

4th. That the transfer to the plaintiff was not an in-dorsement and did not give him a legal title, so as to ena* ble him to sue, as indorsee, in his own name.

The Court instructed the jury, that there was no evidence of a demand on the bond declared on, before the 29th of June 1848, and that it was not over due or dishonored, when transferred to the plaintiff on that day; that the transfer to the plaintiff was a valid indorsement, and gave him the legal title of an indorsee; that, inasmuch as the bond vyas not due at the time of its indorsement, and the plaintiff was a bona fide indorsee, the pro* ceedings under the attachment created no lien, and, if they believed the testimony, the plaintiff was entitled to a verdict in his favor.

The jury found a verdict for the plaintiff, and from the judgment thereon, the defendant appealed.

J. II. Bryan, for the plaintiff.

Rodman, for the defendant.

Pearson, J.

There is no error. The defendant upon his garnishment ought to have denied the fact of his indebtedness to Eason, unless it was first proved that Eason had not assigned the note before its maturity. It was his folly to submit to a judgment, by which the amount of the note was condemned in his hands, to the payment of the debt of the creditor in the attachment. This subject is fully explained in Myers v. Beeman, 9 Ire. 116, where one is summoned as garnishee, who owes a note which is negotiable; if he chooses to stand upon his rights,nojudgment can be taken against him, without proof that the absconding debtor still holds the note, or had not assigned it, by endorsement before it was due ; for otherwise it does not appear that he is indebted to the absconding debtor.

Assuming, that, as against the payee Eason, the satisfaction of the judgment upon the garnishment is sufficient, without its being done on execution, (which is required by the old cases.) the plaintiff, in this case, asserts and is entitled to, all the rights of an endorsee before maturity ; if so, the note passed to him, suhjeet only to endorsed 'payments.

There is some difference-in the books upon this question of a note payable on demand, whether it is due presently, and therefore cannot be assigned, except as a note over due, until demand is formally made ; but it is conceded in all the cases, that a note payable “at sight," or “when presented,” is not due until it is presented, and so the note in question was transferred to the plaintiff before its maturity. In fact the defendant, in his garnishment, alleges the fact, that the note had never been presented for payment, and in his amended answer admits expressly, that the endorsement was made before the note had been presented, and of course before it was dishonored.

Per Curiam. Judgment affirmed.