Marsh v. Garney

• Decision Date: 11 March 1898
• Citation: 45 A. 745,69 N.H. 236
• Parties: MARSH v. GARNEY et al.
• Court: New Hampshire Supreme Court

45 A. 745

69 N.H. 236

MARSH

v. GARNEY et al.

Supreme Court of New Hampshire. Merrimack.

March 11, 1898.

Foreign attachment by Hiram O. Marsh against Joseph A. Garney and others. Facts found by the court: In November, 1896, the defendant, being indebted to Rollins, the claimant, upon a judgment, turned over to him an account amounting to $30 against Davis, the trustee, with authority to collect it and apply the proceeds upon the judgment in March, 1897, the claimant brought suit against Davis in the name of Garney, without specifying in the writ that he (Rollins) was the plaintiff in interest. Marsh, at Davis' request, and after examining the writ, receipted for the property attached, and immediately brought the present suit. At that time neither Davis nor Marsh knew of the assignment to Rollins, and, if Marsh had known it, he would not have brought suit. Trustee discharged.

William H. Sawyer, for plaintiff.

Napoleon B. Hale, for claimant.

CARPENTER, C. J. The turning over of the account by Garney to Rollins, accompanied with authority to collect it and apply the avails to the payment of Rollins' judgment against Garney, was a sufficient assignment of the account. Brewer v. Franklin Mills, 42 N. H. 292, 294, 295, and cases cited; Pollard v. Pollard, 68 N. H. 356, 39 Atl. 329. To the validity of the assignment no notice to Davis or to Marsh was necessary. Wakefield v. Martin, 3 Mass. 558; Thayer v. Daniels, 113 Mass. 129. The only occasion for notice to Davis would be to protect Rollins against a bona fide payment of the debt by Davis to Garney, or a settlement with him, and also to enable Davis, in his deposition as trustee, to disclose the assignment Giddings v. Coleman, 12 N. H. 153, 158: Cameron v. Little, 13 N. H. 23, 25. Rollins is not estopped from setting up the assignment by his omission to state in his writ that he was the plaintiff in interest. Such a statement could have no possible effect except to give notice of the assignment to Davis. Notice given to him in any other way would be equally effective. Nobody else was entitled to notice, or could be prejudiced by the want of it.

Marsh's attachment of the credits due Garney from Davis was a lien only upon Garney's interest in those credits. In the absence of fraud, Garney's previous assignment of the claim takes precedence of the attachment, although no notice of the assignment was given to Davis. Pollard v. Pollard, 68 N. Hi 356, 357, 39 Atl. 329, and eases cited. Marsh can hold only...