20 N.H. 183 | Superior Court of New Hampshire | 1849
The evidence offered for the purpose of showing a failure of the consideration for which the note was given, was properly excluded at the trial. The note, having been indorsed to the plaintiff before it was due, and he having been a bond fide purchaser, without notice of any defect or failure of the consideration, the defendant is precluded, by well established principles, applicable to negotiable paper, from setting up this defence against the plaintiff.
Nor do the other facts offered to be proved constitute of themselves a bar to this action. The defendant offered to show that, before the indorsement of the note to the plaintiff, one Norton had commenced a suit against the payee of the note, as principal, and the maker, this defendant, as trustee, and thereby attached this debt in the defendant’s hands. It was not proposed to show that judgment had been rendered against the defendant in the trustee process, and it is wholly uncertain whether the lien obtained by the creditor in that suit will ever be consummated. That attachment may be terminated in a variety of modes.
The statute providing for the trustee process against the maker of a negotiable note was not intended to restrict its. negotiability. The indorsee of a note whose maker has been summoned as the trustee of the indorser, takes it
The court, however, proceeded upon the ground that the plaintiff, having purchased the note before due, and without notice of the trustee process, was not in any way affected or hound by that process, and therefore rejected the evidence. For the same reason, if it was a valid one, the court should have refused an application for a continuance of the cause, to await the result of the trustee suit.
But the Revised Statutes expressly authorize the trustee process against the maker of a promissory note which has been made or which is payable in this State, or the parties to which, at the time of making the same, resided in this State. Rev. Stat., ch. 208, see. 18. And a mode is provided to ascertain respecting the possession, transfer, or other disposition of such note. Notice is to be given of the attachment, that any person claiming an interest in the note may appear and show that the same was transferred to him in good faith, and tor an adequate consideration, before the service of the trustee process. And it is expressly enacted, by section 14, that if it shall not appear that the note was so transferred, the promiser shall be charged as the trustee of the debtor; and payment of the judgment rendered against him shall be a discharge from the note, or from such part thereof as is equal to the amount so paid, together with all costs taxed in his favor. The 10th section provides for the case in which the trustee is indebted to the defendant, and the time of payment has not expired.
The statute makes no distinction between the case in which the note has been transferred before it was due,
If the trustee process did not lie at all in such cases, debtors might, by a little care, keep a large proportion of their property out of the reach of their creditors. Before the year 1841, a party, indebted on a negotiable note, was not liable to be charged in the trustee process by reason of his indebtedness, and debtors had, by means of negotiable notes, been accustomed to place their property beyond the reach of their ereditoi’s. This was a great evil, which the legislature attempted, by means of the statute, to redress. The injury to creditors was found to be greater than the benefits dezived from the unrestricted circulation of negotiable paper; and we az’e of the opinion that if we were to adopt the construction apparently given to the statute by the court below, we should restore the evil which it was the object of the statute to remedy.
The court were, however, coz’reet in deciding that the facts offered in evidence were not sufficient to defeat the action, and, according to the provisions which the case makes, there should be judgment ozz the verdict. But this judgment cannot affect his liability in the trustee process, by which the money due was attached in his hands at the suit of Norton, and thus he might be liable to pay the debt twice. This ought zzot to be so.
But this court has jurisdiction only of the questions transferred here, and the defendant mzzst seek his remedy in some other form, and as he may be advised.
Judgment on the verdict.
