Majority
p. 657George S. Terry, Receiver, etc., Respondent, v. William Wait, Impleaded, etc., Appellant. (Argued May 16, 1871; decided September term, 1871.)
Headnote
Actior to recover amount of a promissory note given by defendant, William Wait, to David W. Wait, of whose property plaintiff was appointed receiver in proceedings supplementary to execution. The complaint alleged that the note
p. 658
was transferred to Martin, the other defendant, with intent to defraud the judgment creditor. Defendant Wait answered, denying complaint and pleading payment. The note was paid to Martin after notice of plaintiff’s claim. Martin suffered default. Held, that to recover against defendant Wait it was incumbent upon plaintiff to prove the allegations of fraud; that he was not affected by the default of Martin; and there being no evidence of fraud in the case, judgment reversed.
W. A. Beach for the appellant.
E. F. Bulla/rd for the respondent.
Eabl, C., reads for reversal. All concur, except Gbay, C., dissenting.
Judgment reversed and new trial ordered, costs to abide event.