Commonwealth v. Watmough

Jan. 12.

Burnside, J.

(after stating the case.)—We concur with the learned judge that Hatfield was bound to give notice of his assignments and claini to the sheriff. It'is said, the mortgage was notice with the guarantee of Andrew Zeiss. When the original bond and mortgage was exhibited to the sheriff, they gave no notice of any interest or claim of Hatfield. The records of the Orphans’ Court did not show that they had authorized any transfer. Sarah Ann and Mary were of full age when they sold to Hatfield, and the question of their being of full age was clearly in evidence and fairly submitted to the jury. On their coming of age, the power and duties of the Orphans’ Court over their property and persons were at an end. Counsel for the creditors, as well as for the heirs of Zeiss, who was then deceased, were present when the sheriff undertook to distribute the proceeds of the sale, without the aid of the Court. The law imposed upon the sheriff diligence, correctness, and fairness in that distribution; but these assignments gave no legal constructive notice to the sheriff, and Hatfield ought to have given actual notice to the sheriff of his claim, as neither the record nor the original bond or mortgage exhibited any claim of Hatfield. If actual notice had -been given, the sheriff no doubt would, have brought the money into Court, and the Court would have appointed an auditor who would have heard the claimant. It has been ruled that where there are several plaintiffs and no notice to .the sheriff, payment may be made to either: Lazarus v. Yolmer, 4 W. & S. 9. It is also ruled that payment to the obligee who has assumed the bond without notice to the obligor, is good against the assignee: Berry v. Hardman, 4 S. & R. 167. If the plaintiff has sustained a loss, he owes it to his negligence.

Judgment affirmed.