Downer v. Topliff

| Vt. | Mar 15, 1847

The opinion of the court was delivered by

Royce, Ch. J.

Judgment having passed in this case against Topliff, the principal defendant, the trustees disclosed; and the questions are, — 1, Whether they should be adjudged liable at all, under the trustee process, — and 2, If they are liable, whether the claim against them should be adjudged to Downer, the attaching creditor, or to Aikens, the claimant. In the court below they were adjudged liable, — but liable in favor of the claimant. We think there is no sufficient ground for saying that the claim against the trustees, upon their bond to Topliff, did not constitute a kind of indebtedness, at the time when this proceeding was commenced, which might well be reached by the trustee process. The bond was given to Topliff, an officer, to indemnify Mm for having attached certain property, at the suit of the trustee Hayes, as belonging to one Chamberlin. And it is true, that, until a recovery was had against Topliff for the property, at the suit of another Chamberlin, who made good his title to it, the bond constituted but a contingent claim against the signers, and, as such, was excluded from the operation of the trustee process by express statute. But after Topliff had thus been damnified, and a clear and substantial cause of action arose upon the bond, the signers became fixed with an obligation, which was certain as to the liability, and uncertain only as-to the amount for which they might be ultimately subjected. It was like any other indebtedness, where the amount is susceptible of dispute and controversy.

Upon the other question, — It is not disputed that a legal and proper assignment of the bond, and all claims arising under it, was seasonably made by Topliff to Aikens, the claimant; so that the question depends upon the sufficiency of the notice, given of that assignment, to defeat this species of attachment.

The case finds, that Blanchard had timely and express notice. But it is not found, that Hayes had notice, prior to the service of this process upon him, unless the disclosure of Blanchard was proper evidence to prove it. The decision below, in favor of the claimant, did not proceed upon that evidence, but upon the ground, that notice to Blanchard alone was tantamount, in its effect, to notice to both the trustees. Two inquiries are consequently involved in the revision of the case here; — whether Blanchard’s disclosure was legal evidence of notice to Hayes, — and, if not, whether notice to Blanchard alone was sufficient.

As a general rule, we regard the disclosure of a trustee as being analogous to an answer in chancery; — and the answer of one defendant in chancery is never evidence against a co-defendant, except in special cases, not applicable to the condition of these parties. Ordinarily, the disclosure is regarded, not so much in the character of testimony, as in that of admission, or denial, on the part of the trustee. It should never be treated in the former view, as against a party not entitled to be present and to interrogate the trustee; — and as a co-trustee has generally no such right, it follows, that, as against him, the disclosure should not be received as evidence. Blanchard might have been called and sworn as a common witness to prove notice to Hayes.

In reference to the effect of notice to Blanchard only, it may be observed, that, to many purposes, there is a marked distinction between notice by legal process, affecting the rights of individuals, and mere notice in pais, affecting their rights. Process must be served on every person to be directly affected by it; while a mere •notice is frequently good and effectual, though given to one of several persons to be affected by it. This is on the ground of identity of interest, or that each is the agent of the others, concerning the right to be affected; as in the case of partners. But it seems, that nothing of this can justly be predicated of the relation between Hayes and Blanchard. Hayes was the principal in the bond, and Blanehard but a surety, and, moreover, insolvent. As between themselves, there was neither identity of interest, nor a mutual agency, within this principle. And as their relation to each other appeared upon the face of the bond, Aikens was bound to regard it, in giving notice of the assignment.

Judgment of the county court reversed.