
    Choate, Defendant in Error, v. Noble et al., Plaintiffs in Error.
    1. A notice under section 39 of the attachment act (R. C. 1855, p. 250,) is not a prerequisite to the maintenance of an action by an officer under section 41 of that act. Section 39 is merely directory.
    
      Error from Newton Circuit Conrt.
    
    
      Edioards $/• Ewing, for plaintiffs in error.
    I. Tbe court below erred in overruling the demurrer of the plaintiffs in error, because the defendant in error failed to comply with the law. When a receiver is appointed he is required to give either written or printed notice to the debtors of the defendant. (R. C. 1855, p. 250, § 39.) And when no receiver is appointed, the attaching officer shall have all the power and perform all the duties of a receiver under this act. (R. C. 1855, p. 250, § 41.)
    
      Ryla/nd 8f Son, for defendant in error.
    I. The court below properly overruled the defendant’s demurrer, because this action is expressly authorized by the statute law of our state concerning “ attachments.” (R. C. 1855, p. 299, § 37-41.) The notice required by the thirty-ninth section to be given by the receiver or by the sheriff is not a prerequisite to such receiver or sheriff’s right to sue, but is required only to fix the liability upon the persons indebted from the time of such notice given, in order that such debtors may not pay their debts to other persons than such receiver for such sheriff.
   Napton, Judge,

delivered the opinion of the court.

This is a proceeding by the sheriff under the forty-first section of the attachment law. The action is on a note given by the defendants to one Roberts, and attached by certain creditors of Roberts. There was a demurrer to the petition, because the plaintiff doos not allege that he had given any notice, written or printed, to the defendants, as required by the thirty-ninth section. The demurrer was overruled, and, we think, rightly. The object of that section is to prevent the debtor from paying over his indebtedness to the attached creditor, and if he does so, without notice or without knowledge of the attachment, he is protected. But this is a matter of defence and not a ground for demurrer. The thirty-ninth section of the act is directory, and if the debtor has not in fact paid any portion of the note sued on to the payee, the notice could be of no use to him. It is not a prerequisite to the maintenance of the action.

Judgment affirmed;

Judge Ewing concurs. Judge Scott absent.  