1

HOUSTON, S. FRAZIER.

that, at the time the note was endorsed, it was understood that Frazier was to dispense with the legal requisite of reasonable notice of non-payment, as well as that of demand on the maker, which last he certainly waived at the time of the endorsement, then his responsibility would be fixed, and the verdict of the jury correct.

I cannot, however, consistently with any correct rule of construction, put so enlarged an interpretation upon these expressions. Another and far different one may be given to them, which I will explain thus: "you, as agent of the plaintiff, after relying upon a promise of payment, on the part of the maker, and after having given credit to, and indulged him for such a length of time as exonerates me from liability, have done right to bring suit upon the note against the maker, who is alone legally bound to pay the amount: I will however, aid you with my endeavors, that his property shall bring the money." That these expressions on the part of Frazier, were no waiver of a right to notice of non payment, will be clearly seen by reference to the authorities quoted in Chitty on Bills, 308-523. Chitty himself says, the waiver by an endorser, must be explicit and made out by the most clear and unequivocal evidence. If an endorser, speaking of several bills, on different places, and under different circumstances, says, " he would take care of them," or " he would see them paid," this was held not sufficient evidence of a promise to pay one of the bills, on which no notice of non-acceptance had been given. Miller vs. Hackley, 5 John. Rep. 375. Griffin vs. Goff, 12 John. Rep. 423. Expressions of this kind are to be construed strictly, May vs. Coffin, 4 Mass. Rep. 341. In the last case, where there had been promise to pay, where due notice had not been given, it was held not binding, as being wholly without consideration, and especially, as he had retracted his promise a few days afterwards. So too, if an endorser, under ignorance of the law, or through mistake of the law, promise to pay a dishonored bill or note, he is not bound by such promise. 7 Mass. Rep. 449. In the expressions used by Frazier, there certainly was nothing like an express promise to pay, without which, it seems he could not legally be held liable. In the case before us, the note having been endorsed after it became due, Frazier's relationship with the drawer, his waiver

LESTER, ads. MARTIN. BATES, ads. MARTIN. WADSWORTH, ads. GRISWOLD.

of diligence, in respect to demand of payment; his after decla ration that Houston had done right in bringing the suit, and his saying that he would see that Conner's property should bring the money. All these considerations, combined with the certainty that Frazier had received value for the note, together with the apparent injustice of applying a rigid technical rule to contracts not strictly of a mercantile character, may probably have produced this verdict. It is possible however, there may have been representations on the part of Frazier, in relation to this transaction, which may on a second trial produce the same result, of fixing him with the payment of this debt. But from the best view which I have been able to take of the evidence furnished on the trial, and from the law arising thereon, I entertain no doubt but that a new trial should be granted; which is the unanimous opinion of the court.

J. D. LESTER, ads. M. MARTIN, J. BATES ads. M. MARTIN. Under the act of 1821, suggestions were filed against judgments, before confessed; which, on being called, were dismissed by the Judge of the Circuit Court. The defendants to the suggestions, thereupon, entered up judgments as of nonsuit, and issued executions for costs. These executions, on motion before a Judge at Chambers, were ordered to be set aside, and on appeal, it was held that the defendants were not entitled to costs.

TERTIUS WADSWORTH, vs. GILES GRISWOLD. Defendant having lodged two notes of hand with an attorney for collection, by a separate writing, assigns them with other choses, in payment of a debt, and transfers the attorney's receipt for the notes, with an order written thereon, to pay the proceeds when collected, to the assignee. The plaintiff's attachment being afterwards issued and served on the attorney, as guarnishee, it was held that the assignment was valid, and the monies collected not liable to the attachment.

THE defendant, Griswold, in the month of February, 1820, placed in the hands of John M. Felder, Esq. attorney at law, for collection, two notes of hand, drawn by William West,

C

WADSWORTH, ads. GRISWOLD.

in favor of said Griswold. Before any judgment had against West, or the monies collected, Griswold being indebted in a large amount, as is alledged, to one William H. Imlay, transferred by his attornies, A. Slaughter and C. Labuzan, a right to certain choses in action due him, in part satisfaction of his debt; a list whereof was made out, the notes of West being included. On the back of this list, was the following memorandum, in the hand writing of Griswold: "I have examined the within schedule of notes receipted for to William H. Imlay, by A. Slaughter and C. Labuzan, and which said notes they, as my attornies, assigned to the said Wm. H. Imlay; and which said act of my attornies, I hereby ratify and confirm:" signed, "Giles Griswold." On the back of the receipt also, given by Mr. Felder, at the time the notes in question were lodged with him for collection, is the following endorsement: "Pay over to William H. Imlay or order, the proceeds of the within claims; for value received, 14th April, 1821. Giles Griswold, for

A. Slaughter and C. Labuzan, attornies." Wadsworth, the plaintiff, obtained a writ of attachment, which was lodged 28th October, 1822; a copy whereof was served on John M. Felder, the same day; to which he returned that the money was collected and ready to be paid over as the court should direct.

Whether under all these circumstances, the monies collected from West, and in the hands of Mr. Felder, were subject to the plaintiff's attachment, was the question. The presiding Judge did not think that the assignment and transfer to Imlay precluded Wadsworth from a recovery. The jury found accordingly, and the money was ordered to be paid over to the plaintiff.

An appeal from this decision was taken:

1st. Because there was such an assignment and transfer of the money collected from West, to Imlay, as to prevent its liability to Griswold's attachment.

2d. Because there was no property on which the attachment could operate.

The opinion of the Court was delivered by Mr. Justice Gantt.

Long before the attachment in this case was served upon the

WADSWORTII, ads. GRISWOLD.

garnishee, (but at what particular time does not appear) Griswold, by his authorized attornies (A. Slaughter and C. Labuzan) amongst other choses in action, transfered to Imlay the notes in question.

Imlay being a creditor to a large amount, the transfer thus made was based upon a full and adequate consideration. In reference to this transaction and in confirmation of it, (if indeed any confirmation was necessary) was the order of Griswold himself, on the 14th April 1821, upon the back of Mr. Felder's receipt for the notes in question, directing that the proceeds of West's notes should be paid over to Imlay.

It is impossible to conceive therefore a more full and absolute relinquishment of right in one man and investiture in another, than what took place in this instance. Not the slightest imputation of fraud attaches to the transaction, by which its efficacy might be impaired; but on the contrary, the transfer appears to have been bona fide, and in part payment of a very large amount due from Griswold to Imlay. After the right of Griswold to those notes had been thus disposed of, Wadsworth, the plaintiff, on the 28th October, 1822, (eighteen months at least after Imlay's right to the proceeds of West's notes had been secured to him) took out his attachment. The attachment act can alone operate, by the express terms of it, upon the monies, goods, chattles, &c. of the absent debtor. If therefore the money in the hands of the attorney, did not belong to Griswold, the debtor, but to Imlay, then there was nothing on which it could operate.

The plaintiff, although a creditor, was entitled to no preference over Imlay; and the effect of the proceedings under this attachment (were they to be allowed) would be to divest a right fairly and legally established in Imlay, and to appropriate a sum of money belonging to him, to the payment of a debt due by Griswold.

This would be as unjust as it is illegal. The order therefore, which was made for the payment of the money in the hands of the guarnishee to the plaintiff in attachment, is set aside, as also the verdict which was given in the case; the property attached not having been liable to the plaintiff's attachment.

Richardson, Huger, Johnson and Colcock-Justices, con

curred.

RICHARD RICE, ads. SAMUEL SPEAR and JAMES GALBREATH. W. H. residing in Virginia, by his will directs his negro slave, C. to be free after the expiration of his apprenticeship. To this the executors assent, the estate being, independently of this property, solvent; and C. is suffered to go at large as a freeman. C. is afterwards levied upon and sold, under a fi. fa against the executors of W. H. Held that the sale was void and C. entitled to his freedom.

THIS action was instituted by the plaintiffs, as guardians of negro Charles, to establish his freedom, under the will of his former owner, Wm. Hutt, late of Westmoreland county, Virginia, deceased. The following is the clause in the will," It is my will that negro boy Charles shall continue with James Piggott, for four years, to learn the tailor's trade, after which time he shall be free." His will bears date the 18th November, 1799. On the 23d of December, following, the will was admitted to probate and duly recorded. Samuel Templeman, the surviving executor under the will of Wm. Hutt, deposed, on his examination, that he was acquainted with the boy Charles, and by his evidence identified the ward of the plaintiffs as the same. He further testified, that he had every reason to believe that the estate of Wm. Hutt will be sufficient for the payment of all his debts; and the witness pointed out, very explicitly and satisfactorily, the reasons upon which his belief rested. That he had no claim, as executor, against the freedom of Charles: that as soon as he had qualified as executor, under the will of Wm. Hutt, to wit, on 4th Monday of December, 1799, he together with the other then executors considered Charles as free, so soon as his apprenticeship should expire. That soon after the death of Wm. Hutt, Piggott, the tailor, died; at whose death the negro Charles went about at large for several years in the county of Westmoreland, perfectly free and unrestrained by either of the executors, or any one else. That the executors had no claim upon him, nor did the witness ever hear of any claim set up by any one, until within a year or two last passed, by a Mr. Chandler, who claimed him, as the witness had been informed, as administrator of Wm. Rice, a former deputy sheriff of Westmoreland, who it was said, had bought him fifteen or twenty years ago at a sheriff's sale. The witness testifies, most expressly, that he, the witness, never consented to