not received on the trial, and must repel every foreign influence which may affect the minds of the jury. If we need authorities to so plain a point, those cited on the argument are conclusive: Hix v. Drury, 5 Pick. 298; Whitney v. Whitman, 5 Mass. 405; Benson v. Fish, 6 Greenl. 141; 1 Sw. Dig. 775. So, we are all of opinion that the superior court should have charged the jury, as requested by the defendants, in relation to the mortgages to Whitaker. By those mortgages, Whitaker, and all who acted under him, had a right to take possession of the articles enumerated in them; and by one of them he is authorized to sell those articles and pay his debts with the avails. How, then, can he be sued in trover? At law, the goods and the avails of them belong to him. It was through some inadvertence this error had intervened.

There is another point on which we are not agreed; and, therefore, we place our decision on the grounds already stated. We all think that the appointment of A. G. Frink, as overseer, on the twenty-fourth of July, 1844, is legal; and that this proceeding might be followed up and perfected by the appointment of an overseer in the second stage, notwithstanding the objection that the plaintiff was not an inhabitant of Norwich during the latter part of said proceeding. We do not think the party had changed his domicile or residence; nor if he had, that he could interrupt the proceeding. We express no opinion upon the question of notice. We are inclined to think that Perkins complied with the statute in leaving a true and perfect inventory of the estate of the plaintiff in the office of the town clerk. We advise a new trial.

In the opinion thus expressed, the other judges concurred. New trial to be granted.

VERDICT WILL BE SET ASIDE OR ARRESTED, if the jury take papers into the consultation room, which might have influenced their verdict: Hilton v. Southwich, 35 Am. Dec. 253, and note, in which the general subject of misconduct of a jury is considered at length.

CASES

IN THE

SUPREME COURT

OF

FLORIDA.

SESSIONS v. STEVENS.

[1 FLORIDA, 233.]

JUDGMENT AGAINST A GARNISHEE IS PRIMA FACIE A BAR to a subsequent re. covery of the same debt by any person.

IN CASES OF GARNISHMENT, THE EXECUTION CREDITOR is deemed an assignee of the debt from and after the service of the garnishment, and is entitled to judgment as if such assignment had been regularly made.

JUDGMENT AGAINST A GARNISHEE is entitled to all the attributes of an adjudication upon the subject-matter; and the debt garnished loses its identity and character and ceases to be the subject of future action. JUDGMENT AGAINST A GARNISHEE CAN NOT BE COLLATERALLY ATTACKED for irregularity in the proceedings upon which it was based, as by showing that the garnishment was issued and served before a return of "no property" was made on the execution.

ASSUMPSIT by plaintiff as indorsee of a promissory note, made by John Stevens, dated July 30, 1842, and payable September 1st, of the same year. The facts appear in the opinon. Defendant had judgment. Plaintiff appealed.

Randal and Hagner, for the appellant.

By Court, BALTZELL, J. This is a suit instituted by Sessions against Stevens, in the court below, on a note for one hundred and six dollars, payable the first of September, 1842, to Adam Wyrick, and by him assigned to plaintiff. The defense principally relied upon was, that "defendant was served with a process of garnishment issued from the superior court of Jefferson county, upon a judgment and execution issued out of said court, in which James Branon was plaintiff, and said Wyrick was defendant, to answer concerning his indebtedness to said

Wyrick, according to law, and upon such answer at November term, 1844, of said court, judgment was rendered against said defendant for the amount due on the note, to wit, the sum of seventy-one dollars, and three dollars and ninety-four cents costs, which record he brings into court," etc. To this there was a replication "that no such judgment as mentioned in said defendant's plea, was obtained in favor of James Branon at said November term, 1844." The court below directed the jury that plaintiff was not entitled to recover, and the propriety of this instruction is now presented to the consideration of this court by the assignment of errors. The instruction would seem to follow as a consequence from the state of the pleadings, and the successful maintenance by defendant of his plea of judgment recovered. A judgment against a garnishee, prima facie, is a bar to a subsequent recovery of the same note in the hands of any one. The law in such cases constitutes the execution creditor an assignee of the note from the time of the service of the notice of garnishment, and entitles him to judgment as if the note had been regularly assigned to him by act of the party, otherwise there would be the strange and extraordinary anomaly of a tribunal of justice committing an act of injustice, by compelling a party to pay twice on the same engagement.

Such judgment is the action of a court of competent and general jurisdiction, and is entitled to all the attributes of an adjudication upon the subject-matter. By it, the note in legal contemplation, becomes extinguished, loses its identity and character, and ceases to be the subject of future action. "It is evidence not only of the judgment, but of the right which it has decided:" Green v. Sarmiento, Pet. C. C. 74. "A judgment in its nature concludes the subject in which it is rendered, and pronounces the law of the case. It puts an end to all inquiries into the fact, by deciding it:" Ex parte Watkins, 3 Pet. 204, 205. If the plaintiff, instead of taking issue on the plea as to the existence of the judgment, had replied, that he was a bona fide holder of the note before service of the notice of garnishment, a different case might have been presented: Williams v. Marston, 3 Pick. 67. But this was not done, and it is questionable whether such evidence was admissible on the trial. Yet the evidence shows the note to have been assigned after service of the notice. The assignment of the note bears date the year it became due. Omitting the day and the month, a suspicious circumstance, and the proof on the part of the defendant, was that Wyrick, the original holder in March, 1843 (the notice being

served in February preceding), asked payment of Stevens of the note. Stevens said he had been garnished. Wyrick asked for another note. Wyrick had it and showed it to Stevens. The plaintiff did not prove when or how he obtained the note. Under this state of facts, we concur in the opinion with the circuit court as to the propriety of the instruction given.

It was objected that the notice of garnishment was illegal, there not being a return of "no property" on the execution, which is made a prerequisite by the statute to the issuing of notice of garnishment. That there was an irregularity in this respect does not admit of doubt, and if the application had been made to the court rendering the judgment to set aside the notice, or objection had been made to the answer of the garnishee, the court would probably have quashed it, or excused him from answer. In case of overruling his objections, the party might have appealed, or had his writ of error. But this is his privilege, and he may waive it. By declining this course, he is presumed to have assented to it, nor is he or his assignee permitted to disturb the judgment afterward in another suit, presenting the question in a collateral manner. These principles will be found to be asserted in repeated decisions of the supreme court of the United States. Thus, "a court which is competent, by its constitution, to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in its proceedings, the facts and evidence on which it is rendered, whose record is absolute verity not to be impugned by averment or proof to the contrary, is of the description of courts whose judgments are conclusive if not removed to an appellate court. There can be no judicial inspection behind the judgment, save by appellate power:" Voorhees v. Bank of United States, 10 Pet. 473; Grignon's Lessees v. Astor, 2 How. (U. S.) 343. Considering this view of the subject conclusive, we have not deemed it necessary to notice the other points in the case; being fully satisfied that the judgment should be affirmed-which is decreed accordingly.

JUDGMENTS AGAINST GARNISHEES are peculiar in that they operate to make one man pay another man's debt. By virtue of a so-called judicial assignment, a debtor of the defendant may be called upon to pay, not his immediate creditor, the defendant, but this defendant's creditor, the plaintiff. What, therefore, are the rights of the several parties to this species of novation? How is the defendant to be protected in the proper application of his property in the garnishee's control, and what provision has the law made to guard the garnishee when called upon by the defendant to account for his property? It is to be observed that this payment of one's debt by substituting his debtor is not the result of an agreement between the parties inter

ested. The whole proceeding is involuntary, the parties stand at arm's length. With these preliminary remarks, let us proceed to examine the nature of the relation between garnishee and defendant as affected by the rendition of judgment against the garnishee in favor of the plaintiff in the main action. RIGHTS OF THe Garnishee ON PAYMENT OF JUDGMENT.-It is a matter upon which there is no conflict of authority that where the garnishee has paid, in due course of law, a judgment rendered against him, such payment is conclusive upon the defendant in the main action, and will bar his recovery against the garnishee to the amount of the payment: Canady v. Detrick, 63 Ind. 485; Greenman v. Fox, 54 Id. 267; Ohio & Miss. R. W. Co. v. Alvey, 43 Id. 180; Barton v. Allbright, 29 Id. 489; Schoppenhast v. Bollman, 21 Id. 280; Ladd v. Jacobs, 64 Me. 347; Brown v. Dudley, 33 N. H. 511; Allen v. Watt, 79 Ill. 284; Hirth v. Pfeifle, 42 Mich. 32; Hitt v. Lacy, 3 Ala. 104; Mills v. Stewart, 12 Id. 90; Ross v. Pitts, 39 Id. 606; Anderson v. Young, 21 Pa. St. 443; Noble v. Thompson Oil Co., 69 Id. 409; Morgan v. Neville, 74 Id. 52; Wigwall v. Union C. & M. Co., 37 Iowa, 129; Baltimore & O. R. R. Co. v. May, 25 Ohio St. 347. Such payment to the attaching creditor by the garnishee may be pleaded in bar to an action brought by the defendant to recover the same amount from the garnishee. Same citations. If the garnishee has already pleaded in his creditor's action, he may, on the plaintiff's recovery of judgment, resort to equity, set up the payment to the attaching creditor, and have the execution on the judgment enjoined: Allen v. Watt, 79

Ill. 284.

Against an assignee subsequent to the garnishment the payment by the garnishee under the judgment may be relied upon as a defense: Newman v. Manning, 79 Ind. 218; Bushnell v. Allen, 48 Wis. 460. And this although such assignee had acquired his rights between the service of the writ upon the garnishee and the return thereof, and notice had been given to the gar nishee before payment: Id. But if the assignment was prior to the service of the writ, and the garnishee had notice thereof, judgment against him and payment to the attaching creditor is no defense to the assignee's action: Lewis v. Dunlop, 57 Miss. 130. If at any time prior to judgment in favor of the attaching creditor against the garnishee the latter learns of an assignment before the service of the writ of attachment, he must bring the fact to the attention of the court. The judgment and payment thereunder will be no protection to the garnishee who knows of the prior assignment of the defendant's claim against him, and omits to set up that fact in his answer, or to take some step to acquaint the court with the real state of affairs, to the end that the assignee's interest may be protected: Larrabee v. Knight, 69 Me. 320; Greentree v. Rosenstock, 61 N. Y. 583; Dawson v. Jones, 2 Houst. 412; Smoot v. Eslava, 23 Ala. 659; Bunker v. Gilmore, 40 Me. 88; Casey v. Davis, 100 Mass. 124; Noble v. Thompson Oil Co., 79 Pa. St. 354; S. C., 21 Am. Rep. 66. Payment to the plaintiff under such circumstances is a voluntary act on the part of the garnishee, who must bear the responsibility of having assumed that the assignee was not entitled to the property in his, the garnishee's hands: Greentree v. Rosenstock, 61 N. Y. 583. A payment under a judgment, in good faith, and without notice of a prior assignment, will protect the garnishee: Bunker v. Gilmore, 40 Me. 88, and see cases first above cited in this paragraph.

The garnishee who seeks to discharge his liability to his creditor by reason of a payment to a judgment creditor of that creditor, must not have done anything to prejudice, or omitted to use all reasonable precaution to protect, his creditor. Garnishment "can borrow no aid from volunteered acts of the