13 Conn. 104 | Conn. | 1839
The evidence offered by the plaintiff, was rejected on the authority of Fitch v. Waite, 5 Conn. Rep. 117. The just and reasonable doctrine established by that case, was considered applicable to the one now before the court. We there held, that an attorney, in whose hands promissory notes had been placed for collection, before he had received any money on them, or had become liable to pay over any part of the sums due on them, was not the debtor of the person depositing them, within the meaning of the act authorizing the collection of debts by foreign attachment. Until one of these events happened, he owed the principal nothing ; and, consequently, was not his debtor. We also held, that notes not negotiable, or if negotiable, not indorsed, so deposited, and in the possession of the attorney, uncollected, could not be attached as goods and effects in his hands, by virtue of the provisions of that act; because they were choses in action, which could not be sold on execution. We further held, that an attachment, from its nature, is immediate, and not prospective ; and therefore, that in a process Of foreign attachment, the precise period when the debt is attached, is the time of service. These principles have received the sanction of courts of great respectability. Francis v. Nash, Ca. Temp. Hardw. 53. Staple v. Bird, Barnes 214. McCarthy v. Goold, 1 Ball & B. 387. Knight v. Criddle, 9 East, 48. Padfield v. Brine, 3 B. & B. 294. Stewart v. Marquis of Bute, 11 Ves. 657. Insurance Co. v. Weeks & al. 7 Mass. Rep. 438. Perry v. Coates & al. 9 Mass. Rep. 537. Andrews v. Ludlow & al. 5 Pick. 28. Lupton v. Cutler & al. 8 Pick. 298. Jackson v. Willard, 4 Johns. Rep. 40. Denton & al. v. Livingston & al. 9 Johns. Rep. 96. Handy v. Dobbin, 12 Johns. Rep. 220. Mann v. exrs. of Mann, 1 Johns. Ch. Rep. 231. Spencer v. Blaisdell, 4 N. H. Rep. 196. Insurance Co. v. Platt, 5 N. H. Rep. 193. 502. Rundlett v. Jordon, 3 Greenl. 47.
Were the notes, “ goods and effects,” within the meaning of the act? Or were they dioses in action, not subject to this process ? The case turns on this point. The plaintiff insists, that negotiable promissory notes indorsed in blank, are now regarded, for most legal purposes, as dioses in possession, as chattels, or as money or bank notes; and therefore, that the case of Fitch v. Waite, in which the notes were either not negotiable, or if negotiable, were not indorsed, does not govern the case before us. In support of these views, we have been referred to several authorities. Bailey on Bills, 103.117. note. 1 Sw. Dig. 796. Bradley v. Hunt, 5 Gill & Johns. 54. McNeilage v. Holloway, 1 B. & A. 218. Brush v. Scribner, 11 Conn. Rep. 388, We think no such distinction between negotiable paper indorsed in blank, and notes not negotiable or unindorsed, as has been suggested by the plaintiff’s counsel, exists. They are all mere securities for a debt, or the performance of a contract; and therefore, choses in action. The rights created by them are in action only, not in possession. Their owners are possessed, not of the sums of money specified in them, but of a right to receive those sums fr om the persons holding, or supposed to hold them. It is true, that a suit on a bill of exchange indorsed in blank, may be instituted in the name of the bona Jide holder, who has the legal interest in it; while the action on a note not negotiable, which has been assigned, must be commenced at law, in the name of the promisee. But neither the bill nor the note is a chose in possession. They both furnish evidence of a debt, but cannot be considered as goods and effects, if regard be had either to the legal meaning, or the natural and common import of those words. At the time the statute relating to foreign attachments was enacted, negotiable notes were unknown to our law; and consequently, could not have been in the contemplation of' the legislature. The law of Louisiana, mentioned in Bayley on Bills, may, perhaps, be founded on some statute provision, or derived from the principles of the civil law, which govern, so extensively, contracts made in that state. The case in Gill
The serious, if not irreparable injuty, which might result either to the creditor or debtor, by adopting a rule, which
The motion for a new trial must, therefore, be denied.
In this opinion the other Judges concurred.
New trial not to be granted.