Sawyer v. Thompson

24 N.H. 510 | Superior Court of New Hampshire | 1852

Woods, J.

The plaintiff is an inhabitant of Lowell, in Massachusetts, and is so described in the writ.

Thompson, the principal defendant, and Fittspatrick, the trustee, are described as residents of Salem, in this State. In point of fact, for many years before the service of the writ, and at that time, Fittspatrick was an inhabitant and resident of the city of Boston, in Massachusetts. Thompson, at and prior to the date of the service of this process, was an inhabitant of Boston also, but was at that time temporarily resident in the State of Connecticut.

No one of the parties was ever domiciled in this State.

This case being tried by the jury, the court directed a verdict in favor of the trustee.

The question for decision arises upon exception to the correctness of that ruling.

The plaintiff at the argument contended that it was erroneous and unwarranted, inasmuch as the principal defendant and trustee were set up by the writ as being inhabitants of this State ; and the trustee having pleaded in substance only that he had no money, goods, &c., in his hands and possession, &c., has thereby waived, and is precluded from relying upon the ground of defence that the trustee is not an inhabitant of this State.

It is well settled in this State and in other jurisdictions, that mere choses in action are considered, with reference to the trustee process, as local; and not as following the person of the trustee wherever he may be transiently found. By the custom of London, the garnishee must be a man resident within the city; and a debt arising out of the jurisdiction is not attachable within the city, in the process of foreign attachment. 3 Lev. 23; Shower 10. In Tingely v. Bateman & Trustee, 10 Mass. Rep. 346, it is said, that “ The summoning of a trustee is like a process in rem. A chose in action is thereby arrested and made to answer the debt of the principal. The person entitled by the contract or duty of the supposed trustee is thus summoned by the arrest of this species of effects. These are, however, to be considered for this purpose as local, and as remaining at the residence of the debtor or person entrusted for the principal, and his rights in this respect are not to be considered as following the debtor to. any place where he may be transiently found, to be there taken at the will of a third person, within a jurisdiction where neither the original creditor nor debtor resides.” This doctrine is approved in the opinion of the court in Ray v. Underwood, 3 Pick. Rep. 302; and it is most distinctly recognized and established in Jones v. Winchester, 6 N. H. Rep. 497. It is said in that case that “ if all the parties shall be found to be inhabitants of another State, the trustee cannot be charged in this suit, unless he had goods of the principal in his hands in this State at the time the writ was served upon him, or had contracted to pay money or deliver goods to the principal at some particular place within this State.” It appeared at the trial that none of the parties to the action were at the date of the service of this process inhabitants or residents of this State. It is true that the trustee and principal debtor are described as being inhabitants of this State at the date of the writ, but that is not decisive of the fact, and cannot conclude the party upon that point.

It is plain, that if such were to be the result, an intentional or accidental description of the residence of a trustee would conclusively estop him from showing the truth in that respect, in his defence. But the law is not so. Besides, in the present case, no such objection was taken at the trial to the evidence offered by the defendant in this behalf. Moreover, the ruling does not rest simply upon the ground of the foreign residence of the trustee, but also upon the strong ground that he owed no debt or duty to the principal to be paid or performed here.

The issue in this case will not preclude the right to make the defence relied upon. The issue in a case like the present is not merely whether the trustee has goods, money or credits of the principal debtor in his hands, but whether he has them in his hands under such circumstances that he is answerable for them, within this jurisdiction, where he is summoned.

The present is an attempt to charge the trustee for a chose in action, which is in the law regarded as local in reference to this action. The indebtedness attempted to be reached is between parties resident in other jurisdictions, who have never been domidled within this State, payable, and to be discharged in the foreign jurisdiction. But it is well settled that a chose in action is not reached by the trustee process, under circumstances like the present. It is regarded as having a situs and locality where the party resides. The payment cannot be enforced within this jurisdiction, by this process, of a debt due from a debtor residing in another State, and payable in that jurisdiction. A chose in action, in reference to the foreign process, stands precisely upon the same ground as chattels of the principal debtor, found in the possession of the trustee, located and deliverable by him in another State. The trustee is no more answerable for the chose in action, payable in the foreign jurisdiction, than for the goods that are located there. No lien is created by the service of the process upon either. Both classes of property are equally local.

To compel a performance of the contract in reference to either class of property, in a jurisdiction different from that of the stipulated performance, would be to allow a creditor of the principal debtor to enforce a contract in a manner different from its legal effect, and from the agreement of the parties.

We are, therefore, of opinion that the ruling of the court directing a verdict for the trustee, was correct, and that there must be

Judgment on the verdict.