20 N.H. 359 | Superior Court of New Hampshire | 1850
The process of foreign attachment, or trus-. tee process as it is otherwise termed, owes its origin in this State to the province law of the 4th Geo. I., entitled “ An act to enable creditors to receive their just debts out of the effects of their absent or absconding debtors.” It provided (section 2) a form of process “where no goods, effects or credits of an absent or absconding debtor in the hands of his attorney, factor, agent or trustee, shall be exposed to view, or can be come at so as to be attachedand that “if judgment be rendered for the plaintiff, all the goods, effects or credits which are in the hands of such attorney, factor, agent or trustee, to the value of such judgment, if so much there be, shall be liable and subjected to the execution granted upon such judgment for or towards
. Tbe statute of 1791, which was substituted for tbe pro-, vincial statute, provided for summoning and charging, as tbe trustee of the debtor, “ any person having in bis possession any money, goods, chattels, rights or credits of any debtor.”
• Tbe provisions of this statute were substantially embraced in that of 1829, which describes in tbe same terms tbe property of debtors liable to attachment in tbe bands of trustees; as does also tbe Revised Statutes of 1842, cb. 208, sec. 8, on tbe same subject.
It may be remarked that this process is unknown to tbe common law, and is the creature of tbe statute,0and that its scope and effect do not extend beyond tbe express provisions which tbe statutes contain.
Tbe statutes on this subject are founded, so far as they, relate to absent or absconding debtors — by which terms are meant debtors not residing within tbe jurisdiction of tbe State — upon tbe clear and well settled right of States to provide, in eases of insolvency, for tbe payment of debts due to their own citizens, by sequestrating, by tbe appropriate proceedings, tbe property of tbe foreign debtor found within their borders.
Without adverting to tbe various questions that have arisen, as to what things in action were liable to this particular process, it will suffice to say that it has always been held in this State and elsewhere, that money due on negotiable paper was not so liable, because its negotiable character, as commonly recognized in mercantile countries, was incompatible with such liability. Such was in substance tbe language of tbe court in Stone v. Deane, 5 N. H. 22, 502, decided in 1831.
A statute passed since that decision, and embodied in tbe Revised Statutes of 1842, has, however, changed tbe
The note in question in this case was not made or payable in the State, nor does it appear that the parties at the time of its making resided within' our borders. It is not, therefore, a note described in the statute.
To hold, therefore, that the maker of such a note could be chai-ged as the trustee of the payee, would be in derogation of the law, as declared in Stone v. Deane, and as well established in familiar practice, until the passage of the recent statutes referred to. It would, moreover’, l’aise a question which the framez’S of those statutes saw fit to avoid; namely, whether a judgment, charging, as the trustee of the payee, the maker of a note negotiable by the law merchant at the time and place of its execution, would be in pei’fect harmony with the rights of all parties.
It is ai so a substantial ground for denying the motion, that the statute makes no provision for citing izz the indorsee, except in those cases in which the note is made or payable as the statute points out.
The Court of Common Pleas were, therefore, unquestionably correct in denying the motion.
Motion denied.