J. & J. H. Peck & Co. v. Walton

25 Vt. 33 | Vt. | 1852

The opinion of the court was delivered by

Bennett, J.

We think the trustee must be held chargeable.It is true, the case finds, that the two notes now in question were indorsed, while the notes were current, and before the service of this trustee process, to the claimant, for a valuable consideration. By the act of 1841, all negotiable paper, whether under or over due, is subjected to the operation of the trustee process, unless it shall have been negotiated, and notice given before the service of the trustee process, of such negotiation of the paper. It is claimed, that if the maker is informed, that the paper has been negotiated before the writ is served, it is sufficient, though this information comes from a stranger to the paper, and one who in no way acts as the agent of the parties to the paper, and has no interest in it. But we think not.

The right to attach negotiable paper is complete, subject however to be defeated, and to defeat this right, notice, must be given of the indorsement. We think, the word “notice,” in the statute, means something more, than knowledge. It is necessary that it should be given, to perfect the right of the indorsee; so that it may override the attachment, and it implies a duty to be performed by the indorsee, or through his procurement; and it may be likened in principle to a bill of exchange, where notice of protest and nonpayment are necessary, to give the holder of the paper, a remedy against the drawer.

It is possible, that if this notice had come from Walton, the payee of the note, it would have been held sufficient. It was held in the case of Stewart v. Barnum, Bray. R. 173, that notice to the maker of a note, by the original payee, that the note had been indorsed, was sufficient notice, under the statute of 1798, to protect the indorsee against any after payment, made by the maker of the note to the indorser. But this is a point not now before the court, and no opinion is intended to be expressed upon it. We are all agreed, that the right of Lyman, the claimant, to the notes in question, cannot be perfected, so as to defeat the attachment, by such a notice, as this case shows.

The result is, the judgment of the county court must be reversed, and the trustee, adjudged chargeable as per disclosure, deducting his costs in the county court; the judgment against the principal debtor affirmed pro forma, without costs in this court; and judgment for the plaintiffs against the claimant, for their costs in this court.