This appeal is from a judgment recovered in the Marine Court upon a promissory note drawn by the defendant and another person, in favor of the plaintiff, for three hundred dollars.
After issue was joined, the defendant assigned a claim he had against the plaintiff to one Drury, who thereupon commenced proceedings against the plaintiff in the Supreme Court, and issued an attachment against the property of the plaintiff as a non-resident debtor.
Under that attachment the sheriff demanded of the plain-, tiff’s attorney the note in controversy, which he refused to deliver, and the sheriff served upon him a written notice of the attachment and demand.
Afterwards, and before proceeding to trial, the defendant filed a supplemental answer, setting up this attachment and levy as a defence, and upon the trial the justice decided that *426the action could not he further maintained by the plaintiff, and that the sheriff should be made a party, the title to the property having passed to him under the attachment. He rendered judgment, dismissing the complaint of the plaintiff.
The 227th section of the Code provides for the issuing of the attachment at the time of issuing the summons, or at any time afterwards. By the 232d.section, the sheriff is directed to proceed in the same manner as theretofore was required in attachments against absent debtors, and by the 235th section he is ^authorized to execute the attachment upon any debts or other property incapable of manual delivery by leaving with the individual holding- such property a copy of the warrant and notice showing the property levied upon. . Such copy and notice were served on the plaintiff’s attorney on his refusal to deliver up the note when demanded by him.
The principal question in the case is what effect the attachment and levy had upon the note in the plaintiff’s possession, and upon the further continuance of the action. •
Whether a justice’s court may or may not allow a supplemental answer is not clear. No such authority is given in that part of the Code which relates to these courts ;- and the 177th section, which requires or allows supplemental pleadings, is not made applicable to those courts. But as the parties have tried the case upon its merits without placing it upon this question, it is not necessary to express any opinion upon it now.
The proceedings on the part of the sheriff, must, I think, be conceded to be sufficient to constitute a valid levy. The note was the mere representation of a debt due from Bussell to Buckman, and when the sheriff proceeded to serve-the attachment, and the attorney having it in his possession refused to place it in the custody, of the sheriff, he did what the law points out as necessary to make a sufficient levy, viz. he served a copy of the warrant and notice, showing the property levied upon. It is not necessary in regard to notes or other evidences of debt, that there should be an actual possession by the sheriff of the note as in the case of personal property.
The case in 7 How. P. R. 379, and 8 How. P. R. 77, do *427not apply to cases where the levy is made upon evidences of debt, or choses. in action. In regard to them the same language may be used as is used by Judge Parker relating to real estate. “ A claim to hold it under the attachment is sufficient to constitute a levy,” when accompanied by the service of the notice of the property levied on, and copy of the warrant as was the case here.
I am clearly of the opinion, however, that such proceedings could not be pleaded as an answer to this action.
The defendant might have gone to the sheriff and paid to him the amount of the note, and then, by pleading such proceedings and payment, have been entitled to the benefit of the defence. The action was not defeated by the levy nor was the substitution of the sheriff as a party necessary to a proper continuance of it. That the plaintiff was not the legal holder of the note at the commencement of the action, constituted a good defence, and the proceedings on this attachment might have furnished the necessary evidence therefor (Code, §11); but after action brought, no such defence can be set up. The 121st section is express in saying that the action shall be continued in the name of the original party, but the court may substitute the party to whom the claim has been transferred after the action has been commenced. The sheriff might have applied to the court to be substituted as plaintiff, or he might have claimed to continue that action in the name of Russell; or perhaps the defendant, if desirous of paying the debt, might have applied to the court to stay the proceedings until the sheriff was substituted or gave notice of his intention to proceed with the action.
It is said that if Russell had recovered a j udgment, the defendant could not pay it to him with safety, because the claim had been attached by the sheriff. Admit this to be correct, there was no difficulty in protecting himself at any time by payment to the sheriff. He was entitled under the attachment to collect the amount of the note. The proceeding to judgment in the action did not discharge the levy under the attachment, but the sheriff’s claim remained as effectual over the judg*428ment as over the note, and whenever the defendant wished to pay the debt he had a right to do so, and if after payment to the sheriff, the plaintiff had attempted to enforce the judgment, the court had ample power to give relief upon motion. The 232d section of the Code provides for the sheriff’s taking proceedings in the name of the debtor, and discontinuing the same at his pleasure.
As I am of the opinion that the judgment was erroneously rendered in favor of the defendant on this answer, it is not necessary to examine the other questions presented by the points of the counsel.
Judgment reversed.