WHETHER PENDENCY OF AN ATTACHMENT CAN BE PLEADED IN ABATEMENT in any case, quære.

FACT THAT PLAINTIFFS IN TWO SUITS ARE DIFFERENT is prima facie an objection to a plea of the pendency of another suit for the same cause. And to overcome that objection, the plea should show that the debt due was subject to the attachment suit.

WHERE GARNISHEE IN ATTACHMENT ANSWERS THAT OBLIGATION WAS ASSIGNED before he was summoned, the attachment plaintiff can not reply that the garnishee had no notice of the assignment until after he was summoned.

TO CHARGE DEBTOR WITH DUTY OF PAYMENT TO ASSIGNEE, notice is indispensable; but an attachment of the debt in his hands by any creditor of the assignor will not entitle such creditor to a priority of right if the debtor receives notice of the assignment pendente lite, and in time to avail himself of it in discharge of the suit against him.

COMMENCEMENT OF SUIT BY ASSIGNEE OF NOTE IS NOTICE to the garnishee, of the assignment.

IN ACTION ON NOTE MADE AND INDORSED IN OHIO, the laws of that state

must govern.

WHERE PARTY SUES ON NOTE AS ASSIGNEE OF A FIRM, the declaration need not set out the names of the persons composing the firm.

ERROR to the Marion circuit court. The opinion states the

case.

O. H. Smith, for the plaintiffs.

S. Yandes, for the defendant.

By Court, BLACKFORD, J. This was an action of assumpsit, commenced in April, 1848. The suit was brought by Richard M. Blatchford against Thomas M. and Charles C. Smith. The declaration states that the defendants, on the eleventh of January, 1847, at Cincinnati, state of Ohio, to wit, at, etc., made their promissory note, by which they promised to pay, six months after date, to the order of certain persons using the name and style of H. S. Blatchford & Co., the sum of one hundred and seventynine dollars; that afterwards, on the same day, and before the note became due, at Cincinnati aforesaid, to wit, at, etc., the payees, by their said name and style of H. S. Blatchford & Co., assigned the note to the plaintiff. The declaration sets out the statute of Ohio relative to promissory notes, which statute enacts, inter alia, that notes like that here declared on are negotiable by indorsement; that the indorsee may sue in his own name, and that if the indorsement be made before the note falls due, the maker may claim against the indorsee any payment made to the payee before the indorsement, of which payment the indorsee had notice before the indorsement. The declaration then al

leges, in the usual form, the defendant's liability to pay the note, and their non-payment of the same.

The defendants pleaded in abatement as follows: That before they had notice of the assignment of the note, and before the commencement of the action, to wit, on the twenty-seventh of March, 1847, one Isham Keith commenced an action of foreign attachment, in the Wayne circuit court, against the payees of the note, for a certain debt of two hundred and seventy-one dollars, due by the payees to said Keith; that, on the day last mentioned, said Keith filed his affidavit, setting forth, among other things, that Thomas M. Smith (one of the now defendants) was indebted to said payees by note, upon which affidavit a summons was issued, directing the sheriff of Marion county to summon said Thomas M. Smith to appear as garnishee, etc., to answer under oath, as to the rights and credits of the said payees in his hands; that said summons was served before the defendants had notice of said assignment, and before the present action of assumpsit was commenced, to wit, on the fourth of April, 1847; that said writ of foreign attachment was still pending; and that the debt for which the attachment issued was the same debt now sued for. This plea was sworn to by the defendants. There was another plea which requires no further notice, as it is similar to the one above set out. General demurrers to the pleas, and the demurrers sustained. Final judgment for the plaintiff. The plea, which we have above described, is a plea of the pendency of a suit, previously commenced, for the same cause. pending suit pleaded, which is an attachment, is a suit inter partes and not in rem; and it can, therefore, only affect the parties in it and their privies: Mankin v. Chandler, 2 Brock. 125 Whether the pendency of an attachment can, in any case, be pleaded in abatement, is very doubtful. That it can not, is expressly decided in Crawford v. Slade, 9 Ala. 887 [44 Am. Dec. 463]. According to that case, a pending attachment is a cause only for suspending the suit to which it is pleaded until the attachment is determined. The plea before us, however, will be examined, as if there were no question but that the matter of it, if otherwise unobjectionable, might be pleaded in abatement. The fact that the plaintiffs in the two suits are different is, prima facie, an objection to the plea. To overcome that objection, the plea should show that the debt due by the note was subject to the attachment suit. It appears by the pleadings, that the note was assigned before the issuing of the attachment. But the defendants contend that, as they had no notice of the

The

assignment until after the garnishee was summoned, the debt due by the note was subject to the attachment. That argument is based on the statutory provision, which says that the maker of a note may set up any legal or equitable defense, which he had against the payee before notice of the assignment: R. S. 1843, p. 577. We have heretofore held, under a similar statute, that, where an obligor, summoned in an attachment suit as garnishee, answered that the obligation was assigned before he was summoned, the attachment plaintiff could not reply that the garnishee had no notice of the assignment until after he was summoned: Smith v. Wright, 6 Blackf. 550. In Massachusetts, an assignment of a note operates, per se, as an equitable transfer of the note. Notice is, indeed, indispensable to charge the debtor with the duty of payment to the assignee; so that if, without notice, he pays the debt to the assignor, or it is recovered by process against him, he will be discharged from the debt. But an arrest or attachment of the debt in his hands by any creditor of the assignor, will not entitle such creditor to a priority of right, if the debtor receives notice of the assignment pendente lite, and in time to avail himself of it in discharge of the suit against him: Story's Confl. L., sec. 396. In the case before us, the commencement of the assignee's suit was notice to the defendants of the assignment of the note, and the plea shows that the notice was in time to have enabled the defendants to defeat the attachment.

But even if the plea would be valid in a case governed by our statute, that circumstance would not benefit the defendants. The note in question was made and indorsed in Ohio, and the law of that state, which is set out in the declaration, must govern the case: Burrows v. Hannegan, 1 McLean, 315; Williams v. Wade, 1 Met. 82; Yeatman v. Cullen, 5 Blackf. 240. The Ohio statute, as to notes, is similar to the law merchant; and there can be no doubt but that where, under the law merchant, a promissory note is assigned before it falls due, the assignee's suit on the note is protected against such pleas as the one before us.

The defendants refer to the case of Covert v. Nelson, 8 Blackf. 265, but we need not now examine that case, as it was decided under our statute and is not, therefore, applicable. The declaration is objected to, because the names of the assignors composing the firm are not set out. That objection is not tenable: Stout v. Hicks, 5 Id. 49.

The judgment is affirmed, with five per cent. damages and

costs.

CONTRACT IS GOVERNED AND CONSTRUED BY LAWS OF STATE where it is to be performed: See Larrabee v. Talbott, 46 Am. Dec. 637; Jordan v. Thornton, 44 Id. 546, note 549, where other cases are referred to. The principal case is cited in Mendenhall v. Gately, 18 Ind. 151, to the point that a complaint on a promissory note, which alleges it to have been made and indorsed in Mississippi, should set forth the laws of that state governing transfers of notes of that kind.

PENDING ATTACHMENT, PLEA OF, IN ABATEMENT: See Crawford v. Slade, 44 Am. Dec. 463, note 468, where other cases are collected. The principal case is cited in Dawson v. Vaughan, 42 Ind. 397, to the point that an answer in abatement of the pending of another action must show that it is between the same parties.

NOTICE OF ASSIGNMENT OF CHOSE IN ACTION: See Muir v. Schenck, 38 Am. Dec. 633, note 636; Van Buskirk v. Hartford F. Ins. Co., 36 Id. 473, note 475, where this subject is considered.

THE PRINCIPAL CASE IS CITED in Junction R. R. Co. v. Cleneay, 13 Ind. 162, and in King v. Vance, 46 Id. 249, to the point that a person indebted by an unnegotiable note can not be made liable as a garnishee before the note becomes due,

SHERRARD V. NEVIUS ET AL.

[2 INDIANA, 241.]

UNAUTHORIZED APPEARANCE OF ATTORNEY IS VOID, and a judgment confessed for a party by an attorney who appears without authority is in. valid.

ACTION CAN NOT BE SUSTAINED on Judgment Rendered AGAINST ONE NOT SERVED with process, and without notice or appearance.

ERROR to the Lake circuit court. The opinion states the case. J. W. Chapman, for the plaintiff.

J. L. Jernegan, for the defendants.

By Court, BLACKFORD, J. Nevius and others brought an action of debt against Wooley and Sherrard. The suit was founded on a judgment rendered in the circuit court of Warren county, in New Jersey. The process in the present suit was returned, as to Wooley, not found. Sherrard filed three pleas. The first plea was rejected on the plaintiff's motion. The second plea, so far as it is necessary to state it, is as follows: That one McMillan had fraudulently appeared and confessed the action mentioned in the declaration, without any authority to appear and answer to said action for him (Sherrard). This plea also avers, that this defendant, Sherrard, never had any notice of the pendency of said action mentioned in the declaration. Verification. To this plea, the plaintiff replied, that the judgment had not been obtained by fraud in manner and form as alleged. Con

clusion to the country, and issue. The following is the third plea: That he, Sherrard, never had any notice of said suit; that he did not appear, either in person or by attorney, and defend the suit; that no process was ever served upon him; and that at the time of the trial, and at the time of the issuing of the precess, he resided, and still resides, in the state of Indiana. Verification. Replication to the third plea, that said defendant, Sherrard, appeared to said action by his attorney, Henry McMillan. Conclusion to the country, and issue. The cause was submitted to the court, and judgment rendered for the plaintiff. The evidence is spread upon the record. It appears that the defendants, Wooley and Sherrard, who had been partners in the milling business in Belvidere, New Jersey, dissolved their partnership in 1843, and Sherrard removed to the state of Indiana. Afterwards, in September, 1844, Nevius and others, the present plaintiffs, brought the suit mentioned in the present declaration, against said Wooley and Sherrard, and in December following, obtained the judgment now sued on. The process in that suit in New Jersey was returned served on Wooley, and not found as to Sherrard. The transcript of the record sued on, after setting out the declaration, contains the following entries: 1. "And the defendants, by Henry McMillan, their attorney, come and defend the wrong and injury, when, etc., and say that they did not undertake and promise," etc.; 2. "And now, etc., come, as well the defendants as the said plaintiffs, each by their respective attorneys; whereupon the defendants, by their attorney, Henry McMillan, relinquished the plea by him above pleaded, and confessed the action of the plaintiffs; that they have sustained damages," etc. There then follows an entry of the judgment now sued on.

It appears by the evidence, that the said attorney, McMillan, was employed by said Wooley to attend to said suit, without the knowledge of said Sharrard; and that he confessed the judgment without the direction of either of them. The record shows that the process was not served on Sharrard; and there is no evidence whatever that he ever had any knowledge or notice of the suit. He did not employ McMillan, nor did he authorize his employment, to attend to the suit; nor was there any appearance by Sharrard to said suit, unless McMillan's appearance for him, as above described, be binding upon him.

From this state of facts, we are satisfied that the appearance of McMillan for Sharrard, in said suit, commenced after the dissolution of the partnership of Wooley and Sharrard, was