Day v. Zimmerman

• Decision Date: 08 May 1871
• Citation: 68 Pa. 72
• Parties: Day <I>versus</I> Zimmerman.
• Court: Pennsylvania Supreme Court

Page 72

68 Pa. 72

Day versus Zimmerman.

Supreme Court of Pennsylvania.

March 2, 1871.

May 8, 1871.

March 2d 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 449, to January Term 1870 G. Junkin, for plaintiff in error.—The presumption is, that an endorsee has received the note in the usual course of business: Snyder v. Riley, 6 Barr 164. An attachment is unavailable against a bonâ fide holder for value of a negotiable note, obtained after the attachment was served on the maker as garnishee, and after its return, before the maturity of the note, and without actual notice of the attachment. The doctrine of implied notice by lis pendens is not applicable in such cases: Kieffer v. Ehler, 6 Harris 388; Hill v. Kroft, 5 Casey 186; Ludlow v. Bingham, 4 Dall. 47; Maine Ins. Co. v. Weeks, 7 Mass. 439; Enos v. Tuttle, 3 Conn. 27; Huff v. Miller, 7 Yerger 42; Hinsdell v. Stofford, 11 Verm. 309; Little v. Hale, Id. 482; Eunson v. Healy, 2 Mass. 32; Grant v. Shaw, 16 Id. 341; Carlman v. Hays, 20 Pick. 132.

J. G. Shipman (of New Jersey) and L. D. Vail, for defendant in error.—A deduction of fraud may be made not only from deceptive assertions and false representations, but from facts, incidents and circumstances which may be trivial in themselves, but decisive evidence in the case of a false design: 2 Kent's Com. 48 d, 5th edition. The neglect of Day to take proper steps to protect himself is a fraud. The money was attached in his hands; he was restrained from paying until the attachment was disposed of, and was bound to act in good faith towards the attaching creditors: Ege v. Koontz, 3 Barr 109.

The opinion of the court was delivered, May 8th 1871, by WILLIAMS, J.

The law is well settled, that a promissory note is liable to be attached before maturity in the hands of the maker at the suit of a creditor of the payee. Though not due, it is a debt within the meaning of the Attachment Laws, and, therefore, as between the payee and attaching creditor, it is bound by the service of the attachment on the maker; and if, after being attached, it remains in the hands of the payee until maturity, it is bound by the attachment as against all persons into whose hands it may thereafter come. But the attachment is unavailing as against a bonâ fide holder, or endorsee for value, to whom it has been transferred, before maturity, without actual notice of the attachment. The doctrine of notice by lis pendens is not applicable to such a case: Kieffer v. Ehler, 6 Harris 388; Hill v....