72 A. 371 | N.H. | 1909
Prior to 1841, negotiable notes and other choses in action in the possession of a trustee and belonging to the principal defendant could not be held upon trustee process. Stone v. Dean,
Prior to 1832, "the pledgee of goods could not be holden as trustee of the pledgor," for the reason that property so held was not subject to attachment by trustee process or otherwise. Briggs v. Walker,
Sections 28 and 29, chapter 245, Public Statutes, and the provisions of which they are a reenactment, have been frequently passed upon by the courts. In Fling v. Goodall, supra, 218, in speaking of the act of 1841, the court said that it made "provision for holding persons as trustees, on account of negotiable notes and other choses in action, either lodged or pledged in their hands" citing sections 18 to 21, chapter 208, Revised Statutes. In Wheeler v. Emerson,
These decisions clearly demonstrate that under our statutes a trustee having in his possession any note, chose in action, or other personal property belonging to the principal defendant may be adjudged chargeable therefor, whether the same is or is not held subject to mortgage, pledge, or other lien; and if chargeable, that a receiver may be appointed. P.S, c. 245, ss. 28-32.
The possible inability of a receiver appointed in this state to collect notes or other choses in action from parties residing in another jurisdiction furnishes no stronger ground for the refusal to attempt the collection than the like possibility of failure because of the insolvency of a maker residing here. The effect of a refusal by a non-resident to make payment, and by the courts of his state to permit a receiver appointed here to prosecute a suit for the collection of such securities, is not in question. The receiver in this case has collected the check, and the proceeds are under the control of the court. The check was a chose in action, a part of which was the property of the defendant and a part that of the trustee. While the trustee did not hold the check upon mortgage or pledge from the defendant, his right to the possession of it is aptly described by the term "other liens," used in the statute. Mitchell v. Green, supra.
The process followed of appointing a receiver, the collection of the check, and the distribution of the proceeds by payment to the trustee of his interest in the check, to the plaintiff the amount of his judgment, and the balance less the costs of the receivership to the defendant's assignee, was strictly in accordance with the provisions of the statute. It is of no moment whether the principal defendant did or did not indorse the check with intent that the trustee should collect it.
Exception overruled.
All concurred. *211