Bryan v. Saltenstall

• Decision Date: 26 April 1830
• Citation: 26 Ky. 672
• Parties: Bryan v. Saltenstall.
• Court: Kentucky Court of Appeals

26 Ky. 672

Bryan v. Saltenstall.

Court of Appeals of Kentucky.

April 26, 1830

Plea. Bar. Assignment. Attachment in Chancery. Interpleader.

ERROR TO THE CHRISTIAN CIRCUIT; BENJAMIN SHACKLEFORD, JUDGE.

Crittenden for plaintiff.

OPINION

UNDERWOOD JUDGE:

Saltenstall in 1825, executed his note to John Clark, for $720. In 1826 Patton and Sharp filed their bill against Clark and Saltenstall, to subject the debt to the payment of a demand which they had against Clark. In 1826, Saltenstall answered the bill of Patton and Sharp. In 1827, Clark assigned the note to Bryan, who instituted suit thereon.

Saltenstall, plead as matter in bar of the action " that before the assignment of the note to the plaintiff, and before the commencement of this suit, this defendant was impleaded by a suit in chancery, by J. D. Patton and F. C. Sharp, to stay in his hands the amount due by said note, for a debt due to them, by John Clark, who was, and still is, a non-resident of the state of Kentucky; and he avers that legal process was duly served upon him, before the assignment of said note, whereby, he was restrained and prevented; and he avers that he was at the commencement of this suit, and still is restrained by said suit in chancery, from paying said note, or any part thereof, until the matters set forth in said bill, can be heard in equity, all of which, will appear by the proceedings in said suit, which are here now to the court shewn, and this, the defendant is ready to verify, & c. wherefore, & c."

The plaintiff craved oyer of the record referred to in the plea, and demurred. The court overruled the demurrer, and gave judgment upon the matter of the plea in favor of the defendant barring the plaintiff's action, and he has appealed to this court.

There is no ground upon which the plea can be supported as a good bar to the action, or to the recovery of any part of the debt sued for. Bryan was not a party to the suit in chancery, and no order or decree in that suit could affect him.

Plea of bill in chancery depending prior to assignment, to subject debt due by defendant, to the creditor of assignor, no bar to action by assignee, v. obligor in note.

The chancery suit was still pending. No decree had been rendered against Saltenstall; none, possibly might be rendered. The court has given judgment in favor of Saltenstall, in bar of Bryans right of action. If the complainants in chancery should be...