36 Vt. 756 | Vt. | 1864
The only question in this case is as to the liability of the trustees. They are not sought to be charged jointly, but each if liable at all is liable in respect to a several indebtedness to the principal debtors. The Merchants’ Bank of Boston appear as claimant and the only question is whether the funds in the hands of the trustees are liable to attachment in this suit, or whether the claimant’s title is paramount to the plaintiff’s right under this attachment.
The demands upon which the questions arise consist of promissory notes executed by the trustees severally to the principal debtors. It appears that before the service of the trustee process upon the trustees, the principal defendant had negotiated the notes to the Merchants’ Bank of Boston for a valuable, consideration in good faith. The notes are negotiable and all payable in terms respectively at some particular place in this state, that is, at some bank named in this state, except the note given by Zeno Campbell, in which no place of payment is named. The notes were given on time and negotiated to the claimant before maturity. No notice was given to the trustees of the transfer of the notes till after the service of the writ upon the several trustees. It is claimed however that the facts reported show sufficient notice to Doolittle, ol the transfer of his note to the claimant before the service of this writ upon him. It seems to be conceded,' and so we take the fact to be, that the payees, the principal debtors, resided at the date of the notes, and still reside in Boston, Mass., and the makers in this state. The notes were all executed in this state, although some of them were executed here and sent by mail to the payees at Boston, ’and the others were executed and delivered in this state to agents of the payees. As to the notice to Doolittle of the transfer of the notes, the facts are that just previous to June 18th, 1861, the day when Doolittle’s note fell due, the claimant sent the note in the ordinary course of business to R. G. Cole the cashier of the Burlington
It is insisted on the part of the claimant that by the laws of Massachusetts negotiable paper of this character is not subject to trustee process, and that the rights of the plaintiff and the claimant must be determined by the laws of Massachusetts where the payee and endorsee reside, and where the notes were negotiated. We are referred to the statute of Massachusetts for the law of that state. The regular practice is, where a party relies on a foreign law, to prove it in the court below and have it found as a fact in the case. But as this objection has not been relied on, but the counsel have discussed the questions as if the laws of Massachusetts were properly in the case, we so treat it. Our statute provides that such paper is liable to attachment by trustee process until notice of transfer is given to the maker. Assuming the law to be in Massachusetts as the claimant’s counsel claim, the two laws are in conflict. If the law of Mas
But in case of choses in action, like promissory notes, the difficulty is in determining the situs of the property. But it is unnecessary to enter into any extended discussion of this question, because we think the decisions already made in this state settle the principies that must control this case. In Emerson v. Partridge, Trustee of Johnson, 27 Vt. 8, it appeared that the trustee who resided in Burlington, Vt., had dealings with the defendant residing in Boston, Mass,, executed his note at Burlington and forwarded it to the defendant at Boston, Mass., payable at the Commercial Bank in Burlington to the defendant or order four months from date. Reynolds & Co., .of Massachusetts appeared as claimants, and showed that the note was endorsed to them before maturity, and that by the laws of Massachusetts the note was not subject to attachment by trustee process or otherwise, and that no notice of such transfer was there necessary. The trustee had no notice of the transfer till after he was served with the trustee process. The court on full examination of the authorities decided that the trustee was chargeable. That case is in principle identical with the present. The facts in that case are so far identical with the present that no distinction can be made between them, that is, so far as relates to all these trustees except Campbell. That case is decisive of this whole case unless the fact that Campbell’s note specifies no place of payment, leads to a different result as to him. It is insisted by the claimant’s counsel that the case of Baylies v. Houghton & Co., and Trustees, 15 Vt. 626, is an authority to show that Campbell is not chargeable. In that case the trustees were citizens of this state, and the principal debtors citizens of Massachusetts. The notes were negotiable and executed and delivered to the principal debtor in Massachusetts, no place of payment being specified. The court held that the notes were not liable to trustee process in this state, it appearing that they were not attachable by the laws of Massachusetts. In that case the court place much stress on the fact that the notes were executed and delivered in Massachusetts, and from thsjt feet mainly, hold that by intendment of law they were
In view of the principles adopted and the grounds of the decision in both of the cases referred to, we think in the case of Campbell as well as in the case of the other trustees, the situs of the debt is here, and that our law must control in relation tp the remedy of creditors by trustee process.
Judgment of the county court affirmed,