
    Daniel M. Riggs, Use of William R. Hallet, vs. John T. Dyche, et al., Administrators of A. Willis, deceased.
    D. being indebted to the Union Bank of Mississippi, drew a bill of exchange on H. at Mobile, and the bank sent the bill to the Merchants Bank at Mobile for collection. F., a creditor of the Union Bank of Mississippi, attached the bill in the hands of the Merchants Bank, and, by a judicial proceeding in Alabama, the note of D. was sold, and was purchased by|R. Before the judicial sale of the note, D. became possessed of notes of the Union Bank of Mississippi, of an amount equal to the amount of the bill, and tendered them to the Union Bank, which refused them. R. sued D. on the note, D. plead an offset, and gave the notes of the Union Bank, in evidence : Held, that they were legal offsets to the bill.
    F. a creditor of W., a citizen of Mississippi, sued out an attachment against B., a citizen,of Alabama, as having property in his possession of W. B. answered, that he had the note of D. belonging to W. in his possession; D. was a resident of Mississippi, and an order of publication was made to bring D. before the court, upon which a decreenvas given in Alabama, transferring the note of X). to F.: Held, in a suit by F. against D., upon the note, that any offset held by D. against W. prior to notice of the assignment to F. was valid, and the publication in the suit in Alabama, was not notice to D.
    The statute, providing that the debtors to banks, when garnisheed, may pay the judgment of the court against them in the notes of the bank, as whose debtors they are garnisheed, extends also to the case of a debtor of a bank, whose indebtedness has been by judicial proceeding in another state, attached and sold, and suit been instituted against such debtor by the purchaser at such sale.
    On appeal, from the circuit court of Monroe county.
    This is an action of assumpsit on a bill of exchange.
    The facts presented by the record are these : The defendant’s testator, in his lifetime, was indebted to the Union Bank of Mississippi. In liquidation of part of his indebtedness to the bank, on the 26th of January, 1840, at Aberdeen, Mississippi, he drew the bill of exchange, sued on, in favor of one P. Alexander, for $1846 25, and directed the same to A. R. Hunter, Mobile, Ala. payable ninety days after date. The bill .was accepted by Hunter, and indorsed by Alexander and others to the plaintiff, Daniel M. Riggs. The record shows that the acceptance and indorsements, were merely for accommodation of the said Willis, in his life time, and it was indorsed to the said Daniel M. Riggs, for the purposes of collection. That the bill was in fact the property of the Mississippi Union Bank.
    On the 17th of April, 1840, Joseph Fowler, Jr. sued out an attachment from before a justice of the peace of Mobile county, state of Alabama, against the Mississippi Union Bank, returnable to the June term, 1840, of the county court of Mobile county. That, upon the attachment, summons of garnishment wer’e issued, and served upon Daniel M. Riggs. That Riggs answered thereto, that he held the said bill of exchange, (among others) for collection, for and on account of the said Mississippi Union Bank. That judgment was rendered in the county court of Mobile county, on this attachment, in favor of Fowler, against the Mississippi Union Bank, on the 5th day of , February, 1841, for $23,875., That a bill was filed by Fowler on the 5th day of May, 1841, in the chancery court for the southern district of Alabama, in Mobile, against the Mississippi Union Bank and others, for the purpose of having the bill of exchange sued on, (among others) sold, to pay the said judgment. That a decree was made by that court on the day of April, 1842, directing the sale of this bill of exchange (among others) for the purpose of paying the judgment. That the bill of exchange was sold in pursuance of the decree on the second Monday of June, 1842, in the city of Mobile, in the state of Alabama; that the plaintiff in this suit, that is, the usee, became the purchaser thereof,'at said sale, for the sum of $180 24, being ten cents on the dollar. That this sale was made by a commissioner under the decree, who reported the sale to the, chancery court, on the first Monday of April, 1843, in open court; which report was confirmed on- the 15th day of April, 1843. And it was then' ordered that the bill of exchange (among others) should be delivered to the purchaser, who was ■and is the plaintiff, the usee in this action ; and also that the decree then made should stand and operate as an assignment thereof, and also that publication was made according to the order in the said cause, by said chancery court, on the 18th day of October, 1841, by which the defendant’s testator was made a party to said bill in chancery, and that said decree and report of the sale by the commissioner, and the decree confirming the report and ordering the assignment of the bill of exchange, as above stated, remain unreversed, not excepted to or appealed from.
    For the defendants the plaintiff admitted that the bill of exchange sued on in this action, was drawn to pay the curtailment of a precedent debt due from the defendant’s testator to the Union Bank of Mississippi, and that said bill continued to be the property of the bank until it was divested by the judicial proceedings of the courts of Alabama, as above set forth.
    The defendants also proved that the defendant’s testator on or before the 1st day of October, 1840, was possessed of the amount of the bill of exchange, in the notes of the Mississippi Union Bank, and sent the same to the branch of said bank at Ripley, to pay said bill of exchange, where, by the rules of said bank, the same would be payable, in case the same was not paid in Mobile, and offered to pay said bill of exchange to - J. Craig, the cashier of said branch at Ripley, in October, 1840, or to deposit the same to the amount of said bill in said bank, to the credit of said bill, when the said cashier informed witness that the bill had been sent to Mobile, Ala. for collection, had not been returned, and that he did not know what had become of it, and refused to receive the said notes of the Mississippi Union Bank on deposit to the credit of said bill. The defendants thereupon offered and gave in evidence to the jury, as offset and payment, the notes of the Union Bank of Mississippi to the amount of said bill, and interest in discharge of said bill.
    On these facts, the plaintiffs by their attorney, moved the court to instruct the jury as follows :
    1. That the defendants cannot legally offer as a set-off in this case, the notes of the Mississippi Union Bank.
    2. That unless the jury believe that the Union Bank notes, now filed as a set-off, are the same bills offered in payment of this bill of exchange sued on in this case, they should find for the plaintiff.
    
      3. That unless the jury believe that the defendants or the testator, held the same bank notes now offered as a set-off, before the property in said bill of exchange was transferred to the plaintiff, they should ñnd for the-plaintiff.
    And the defendant’s counsel moved the court to instruct the jury as follows:
    1. That the bill of exchange sued on in this cause, continued to be the property of the Mississippi Union Bank, until the assignment by the final decree of the superior court of chancery of Alabama, confirming the sale by the commissioner.
    2. That if the jury believe, from the testimony, that the defendants or their testator, had the notes of the Mississippi Union Bank, filed in this case as a set-off or payment, on the 1st day of October, 1S40, and at the time he or they received notice of the transfer of the bill of exchange, by the decree of the superior court of chancery of Alabama, they should find for the defendants.
    The court refused to give the three instructions asked by the plaintiff’s attorney, but gave the- two instructions asked by the attorney of the defendants.
    Gholson, for appellant.
    The first' question presented by the record in this case is, as to thq effect of the attachment, and the subsequent judicial proceedings in Alabama, in relation to the bill of exchange sued on. It is contended for the plaintiff, that the property in'the bill of exchange must be considered as changed from the date of the attachment or garnishment. That the lien on the bill of exchange, acquired by the levy of the attachment, had the effect to divest the property in the bill out of the Union Bank, and the subsequent proceedings were only intended to carry out' this lien.
    The bank notes offered in evidence in this case, could, not be considered as a tender, for a legal tender in court, can only be in legal currency. It is true, it has often been decided that where a tender has been made in bank notes, and it was not objected to on that ground at the .time, this may be proved as a good tender. But in such a case, the plea of tender would have to be accompanied not with bank notes, but with money.
    The bank notes, filed in this case, if available to the defendants at all, could only be as a set-off. This action being in the name of an indorsee or assignee, it was clearly necessary for the defendants to show at what time the set-offs were acquired. They do not even show that they were acquired before the commencement of the suit.
    The plaintiff makes out his case by showing his bill of exchange, the indorsement to him, and he also shows that the defendants had notice either constructive, by the order of publication in Alabama, or actual by the beginning of the suit. The defendants rely on a set-off obtained before notice of transfer; it is certainly incumbent on them to make out this defence by proof, and a most important part of the proof was, that the set-off was acquired at a time anterior to the notice. In this particular, there was not a particle of proof offered by the defendants. They proved that their testator had the amount of the bill, in the notes of the Union Bank, in October, 1840, but there was no evidence whatever, to show that the notes offered on the trial were the same.
    The last instruction which the defendants themselves asked, required this proof on their part. How could the jury believe that the defendants or their testator, held ’the notes filed, before notice of transfer, without some proof to that effect 1
    
    It is therefore submitted that the court below erred, both in the giving and refusing the instructions, and in overruling the motion for a new trial.
    
      Stephen Cocke, for appellees.
    The first matter which should engage our attention, is the effect of the proceedings in the courts of Alabama. The answer of Daniel M. Riggs, the garnishee in attachment merely, that the defendant’s testator, (among others) was indebted to the Mississippi Union Bank, and that he held the notes for collection, did not give the county court of Mobile county, jurisdiction of the cause, to enable that court to render the judgment against the Mississippi Union Bank. -Its most obvious extent was to enable that court to issue summons of garnishment against the defendant’s testator (among others); the judgment was therefore a nullity, and qo' valid proceedings whatever, could be predicated on it.
    The proceedings in that state, by bill in equity, to subject the bill of exchange to sale by commissioner, and the decree in chancery, directing the transfer of the bill of exchange to the purchaser, is certainly an anomaly in judicial proceedings. It contains none of the attributes or.incidents of a court of chancery ; on the contrary, it is a champerty practice of the most odious tendency. The sacrifice of this very bill of exchange at ten cents in the dollar, under the pretence of equity procedure, has nothing in it to give it validity. No court of chancery has such a jurisdiction. If such a matter could be of chancery cognizance at all, the greatest extent would seem to be to appoint a commissioner to collect the money. The Mississippi Union Bank and the defendant’s testator both being residents of the state of Mississippi, the courts of Alabama could not obtain jurisdiction over them by mere newspaper publication. It is therefore submitted, whether the pretended judicial proceedings in the courts of Alabama, on the matters aforesaid, are not mere loose paper and nullities. We think so. If the plaintiff had in fact, or in law, no cause of action, it is altogether immaterial as to him, whether the charge of the circuit court be regular or not. But we will proceed to show that the charge of the court was correct, and the offsets of the defendants were valid defences to the action.
    The defendant’s testator, by failing to pay the bill of exchange, according to the terms of it, became absolutely debtor to the Mississippi Union Bank, on the 25th of April, 1840, to the amount of the bill of exchange. Being thus indebted, he possessed himself of the amount of the bill of exchange, in the notes of the bank, and sent them to the bank, and offered them in payment, where by the rules of the bank, the bill of exchange would be payable in case the same was not paid in Mobile. This was on or before the first day of October, 1840. The bank was therefore indebted to him on those notes to the amount of the bill of exchange; and they constituted a valid offset, both by the statute law of Alabama, and Mississippi. Indeed, the very verbiage of the laws of these states on the subject, are identical. See Acts of Alabama of 1812, sec. 1, Aikin’s Digest, 328; How. & Hutch, page 373.
    Neither the subsequent judgment on the said attachment of Joseph Fowler, Jr., against the Mississippi Union Bank, on the 5th day of February, 1811, nor the order of assignment of the bill of exchange, by the chancery court of Alabama, on the 15th of April, 1S43, could defeat or impair the right of the defendants or their testator, to the validity of their offset, obtained and possessed as early as the 1st of October, 1840.
    There is very little difference in the legal effect of the instructions asked'by the attorney of the plaintiff, and those asked by the attorney of the defendants. It is believed that the instructions given as asked by the defendants, in their second request to the court, covers all the ground asked by both. It is this, that if the jury believe, from the testimony, that the defendants or their testator had the notes of the Mississippi Union Bank, filed in this case, as a set-off or payment on the 1st day of October, 1840, and at the time he or they received notice of the transfer of the bill of exchange, by the decree of the superior court of chancery of Alabama, they should find for the defendant.
    It is believed that it was no ways material that the offset should have been the identical bank bills. For the purposes of the demand, they were quasi money. But the jury having found that the defendants or their testator had the notes of the Mississippi Union Bank filed in this case, as a set-off, or payment, on the first day of October, 1840, and at the time he or they received notice of the transfer of the bill of exchange, we submit whether there is anything in the case to justify this court in disturbing the verdict.
   PeR Curiam.

The bill of exchange, on which this suit is founded, was made by Augustine Willis, in his lifetime, for the purpose of paying an instalment due the Mississippi Union Bank. Willis had no funds in the hands of the drawee, Hunter, nor had he any expectation that it would be paid. By the Union Bank the bill was forwarded for collection, to the Planters and Merchants Bank, at Mobile, the place of the acceptor’s residence. Whilst the bill was there, Joseph Fowler sued out an attachment against the Urjion Bank, and summoned the cashier.of the Planters and Merchants Bank, as a garnishee, who answered that his bank held this and other paper of the Union Bank, for collection. After Fowler had obtained judgment in the attachment case, he filed a bill in the chancery court in Alabama, for the purpose of subjecting the bill of exchange to the payment of his judgment. To this bill the defendants’ intestate was made a party, and publication was made, according to the order of that court, on the 18th of October, 1841, and in April, 1842, a decree was made, directing the sale of the bill of exchange, which was accordingly sold in June, 1842, when the plaintiff became the purchaser, at about ten cents in the dollar. In April' 1843, the salé was confirmed, and the bill ordered to be transferred to the plaintiff.

The defendants proved that their intestate, on the 1st day of October, 1841, was possessed of Union Bank notes, to the amount of the bill oUexchange, and offered them in payment of the bill, at the branch at Ripley, where by the rules of the barik, the bill was payable. The' cashier informed him, that the bill had been sent to Mobile; whereupon Willis offered to deposit the money, but the cashier refused to receive it. The defendants then offered notes of the Union Bank, to the amount of the bill, as a set-off, to which plaintiff objected, but the objection was overruled.

The plaintiff’s counsel then requested the court to charge the jury, 1. That the bank notes did not constitute a set-off; 2. That if the notes now filed were not the same notes which were held by Willis, in October, 1841, and before the property in the bill was transferred, they must find for the plaintiff These instructions the court refused to give, but instructed for the- defendants, that the bill was the property of the Union Bank, until the transfer, under the decree of the court of chan-eery of Alabama, and if the defendants’ intestate had the notes filed as a set-off, or payment, on the 1st of October, 1841, and at the time he received notice of transfer, they must find for the defendants, which they accordingly did, and the plaintiff moved for a new trial, and took an appeal from the decision overruling his motion.

The transfer which took place under the judicial proceedings in Alabama, demands a passing notice. We are not informed, in such a way as to present the question fairly, what the law of Alabama is, in reference to such a proceeding. But suppose we give to these judicial determinations their full effect,-they can amount to nothing more than a legal transfer of the bill of exchange. The time of the transfer is a matter of some consequence. By the proceedings in attachment, the plaintiff, of course, acquired no right to the bill, npr was the right of the Union Bank divested, even as to the debt. The garnishee did not answer that he owed anything, but that he held certain securities belonging to the Union Bank. The defendants’ intestate was not garnishee, nor had he notice of the proceedings, and of course his indebtedness was not changed. It was by virtue of the chancery proceedings that the transfer took place. The notice of this proceeding was published on the 18th of October, 1841. For the purpose of giving courts of chancery jurisdiction over foreign defendants, publication is resorted to, and this is considered constructive notice, for the purpose of enabling the court to proceed to a decree, but such decrees operate in rem exclusively. By the decree, the interest in the bill of exchange passed, but it is by no means clear, that the defendants’ intestate is to be considered as having notice of this transfer. Such notice must be actual, and not constructive, to deprive the party of his set-off. H. & H. Dig. 373. The bringing of the suit is the first actual notice of transfer, to the defendants.

This question, however, is perhaps immaterial, and we are not called oil to express any decisive opinion about it. We regard it as certain, that the judicial transfer is only entitled to the same effect, that a transfer made by the bank would be entitled to. Suppose, then, on the-18th of October, 1841, the defendants’ intestate had notice of the transfer ; it is in proof, that on the 1st of .October, 1841, he was possessed of the amount of the bill in Union Bank notes. On the trial, the defendants introduced the same amount; the jury were bound to infer from this proof that the notes'were the same, or at least it was sufficient to justify them in doing so. The court charged them, that if the defendants’ intestate had the notes filed, as a setroff, on the 1st of October, 1841, and at the time he received notice of the transfer, they must find for the defendants. On this fact, then, they must have paásed in rendering their verdict. It would seem, then, that the-.defendants have brought their defence within the provisions of the statute, in reference to set-off.

But there are other statutory provisions, which, must be regarded as decisive of this question. Passing over the act of 1840, which prohibits banks.from transferring their bills receivable, and the repugnance, in effect, of this judicial proceeding, to the spirit and intention of that act, we cqme directly to the act of 1842, which completely covers this case. It provides, that in all proceedings against those who may be debtors to banks in this state, by garnishment, the final judgment shall be only given against them, to be discharged in the issues of the banks, and that such garnishee, either before or after judg.ment, may tender in payment of such demand, the amount in the issues of the bank. Acts of 1842, 140. This act was . passed in February, 1842, and was in full force, when the plaintiff acquired the right to the bill of exchange, which was in June, 1842. The relative situation of the parties is precisely the same, as though the defendants had been called on by a garnishee summons. The effect of a garnishment is a judicial transfer of the debt, to the creditor of a creditor. The plaintiff claims under a judicial transfer of the debt, and the evidence of the debt, which took place .under the laws of Alabama, in a judicial tribunal of that state. We cannot permit the laws of a sister state to defeat the provisions of our own laws, or to interfere with our policy, or to work a prejudice to our citizens. To hold that the plaintiff, in this case, could recover anything more than the value of the Union Bank notes, would certainly defeat our policy, and violate, at least, the spirit of our law. The Union Bank notes, or their value, the plaintiff was entitled to, but filing them as a set-off, was equivalent to a payment in court, and the verdict was therefore correct. The plaintiff is, of course, entitled to the Union Bank money, and the judgment must be affirmed.  