Barker v. Garland

22 N.H. 103 | Superior Court of New Hampshire | 1850

Peeley, J.

Had Hilton, the holder and claimant of the notes disclosed by the trustees, the right to appeal from the decision of the justice, disallowing his claim ?

By the Rev. Stat. chap. 208, §§ 18 and 19, if any person, summoned as trustee, appear to be indebted, at the time of the service of the writ on him, to the debtor by a negotiable promissory note, the court may make a rule or order of notice, to be served on any individual, or published in some newspaper, for the information of any person who may claim an interest in the note, that such person may appear and show that the note was transferred to him in good faith and for an adequate consideration, before the service of the trustee process; and the question whether the same was so transferred to him, shall be decided by the jury, if he or the plaintiff request it. If it shall not appear that the note was so transferred, the trustee shall be charged, and the payment of the judgment against the trustee shall be a discharge of the maker from so much of the note.

The claimant of the note, who comes in on an order of notice, is made by the statute a substantial party. He is required to have notice. He is entitled to a trial by jury; and his rights are concluded by the judgment. The proceeding between him and the plaintiff has all the properties of a “civil cause” within the meaning of the constitution, which provides, article 77, that either party in such cause may appeal from the judgment of a justice of the peace. The Rev. Stat. also enacts, chap. 175, § 6, that either party, aggrieved by any judgment given by any justice of the peace in any civil cause, may appeal therefrom to the next Court of Common Pleas.

The trustee has the right of appeal, as well as the principal defendant; because he is by the statute made a party to the suit, and his rights are concluded by the judgment. Hovey v. Crane, 10 Pick. 445.

On the same grounds it must be held, that the claimant of a note who comes in under the statute, has the right to appeal from the judgment of a justice of the peace.

The appellant moved that the trustees be discharged. The trustees did not appeal, nor appear in the Court of Common Pleas, and this motion is not made on their account. Rut Hilton, the appellant, is directly interested in this question; because, unless the trustees have disclosed facts on which they might be charged for the notes held by him, he is not bound to maintain his right to them in this suit, and was improperly summoned before the justice. >. He is therefere a competent party to make this motion.

The judgment of the justice was vacated, or at least suspended by the appeal, and the whole cause was before the Court of Common Pleas, for their consideration and decision. Campbell v. Howard, 5 Mass. 376 ; Keene v. Twiner, 13 Mass. 266; Shotts v. The Judges of Ulster County, 2 Cowen, 506.

To charge the trustees in the Court of Common Pleas, there must have been a new adjudication on that point in that Court, and the question of their liability to be charged was open there on motion of any proper party.

The trustees ought to have been discharged, — first, because they neither of them disclosed any funds in their hands, except negotiable notes, in which they were respectively liable to the defendant jointly and severally with other persons, not summoned as trustees in the suit; and it has been decided, in the cases cited for the appellant, Elliot v. Noyes, 1 N. H. Rep. 184, and Hudson v. Hunt, 5 N. H. Rep. 538, that the trustee in such case cannot be charged. And the provisions of the Rev. Stat. making trustees in certain cases chargeable for negotiable notes which they owe to the principal defendant, could not have been intended to change the law in this respect. No such change is made by any express provision of the act, and none can be implied from the general objects contemplated by the statute. All the reasons upon which this rule of law can be supposed to have been established, apply with undiminished force to the new cases. The other parties to the notes, not summoned, might voluntarily pay, and perhaps might be compelled to pay, to the principal defendant, notwithstanding this process against the co-signers of the notes, and in that case how could their claim to contribution against the trustees be affected by a judgment to which they were not parties ? Jewett v. Bacon, 6 Mass. 62.

The trustees must also be discharged, because the statute does not give a justice of the peace jurisdiction to charge a trustee for a negotiable promissory note due from him to the principal defendant.

The statute that makes a trustee chargeable in certain cases for a negotiable note which he owes to the defendant, limits the jurisdiction to the Court of Common Pleas. The 15th section of the 208th chapter provides that “ if upon the disclosure of any person summoned as trustee in the Court of Common Pleas, or upon the trial of an issue between him and the plaintiff, it shall appear that such person had in his possession at the time of the service of the process upon him, or afterwards, any promissory note,” &c. The 16th, 17th, and 18th sections of the same chapter are connected with the 15th, by successive references. The 18th section, under which the trustees are sought to be charged in this case, enacts that “if any person summoned as aforesaid, &c., that is, any person summoned as trustee in the Court of Common Pleas as is provided in the 15th section. The jurisdiction given in the 18th section is thus limited by unequivocal reference to the 15th section, which relates only to trustees summoned in the Common Pleas.

There are other reasons for holding that the legislature did not intend to give a justice of the peace jurisdiction to charge a trustee on account of a negotiable promissory note.

The statute gives the Court power to appoint a receiver, to hold and dispose of the property disclosed, under the provisions of these sections; a power, which a justice of the peace would find it difficult to exercise, and which the legislature cannot have intended to confer on a single magistrate of such limited judicial authority.

The statute also gives the right of trial by jury, if either the plaintiff or the claimant of the note may desire it; but no such trial can be had before a justice of the peace.

The general grant of jurisdiction to a justice of the peace over the trustee process, excepts from his jurisdiction cases that are “ restricted to the Court of Common Pleas f and this, we think, is one of the cases so restricted.

On these grounds we are of opinion that the trustees should be discharged.