31 N.H. 201 | Superior Court of New Hampshire | 1855
In King v. Holmes & Tr. 7 Foster’s Rep. 226, it was held that an action might be commenced against a non-resident principal defendant, by the attachment of his property in the hands of the trustee residing in this State, by virtue of the trustee process, and afterwards notifying the defendant of the pendency of the suit, by publication in some newspaper, in pursuance of an order of court. We were of opinion that by such a service the court would obtain jurisdiction of the case, so as to render judgment against the parties, and hold the property in the hands of the trustee. It was an attachment of the property of the defendant, found in this State, and a notice to him, under the provisions of the statute for notifying non-residents.
In the present ease, both the trustee and the principal defendants were non-residents; but after personal service of the writ upon the trustee who was temporarily in this State, one of the defendants appeared in court and answered to the action. This voluntary appearance gave the court jurisdiction, so far as the principal defendants were concerned; Libbey v. Hodgdon & Tr., 9 N. H. Rep. 396; and there was no occasion for any notice to them, as was done in King v. Holmes & Tr. Judgment could, therefore, be obtained, and the trustee would be chargeable, provided legal service was made upon him, so as to bring him within our jurisdiction, and he had effects in his hands belonging to the principal defendants.
The trustee contends that, as he resided in the State of Maine, and was in this State at the time the writ was served upon him, only for a temporary purpose, the court had no jurisdiction so as to charge him as trustee, notwithstanding he may have had the two notes and the proceeds of the three others, belonging to the principal defendants, in his possession in this State when service was made upon
Whenever an attachment of the property of a principal defendant can be made in this State, it is clear that judgment may be obtained against him, so as to reach that property, whether a resident or not. If a non-resident, the defendant may be notified, by publication or otherwise, so as to complete the service and render it sufficient. Rev. Stat. ch. 186, §§ 5, 6.
And we have seen that in King v. Holmes & Tr., it was, substantially, decided that the service of the writ upon a trustee having property in his hands at the time of the service, was an attachment of the principal defendant’s property.
Upon the principle, then, that where an attachment is made, the court obtains jurisdiction and the service may afterwards be completed and judgment obtained, it would seem that the trustee in this case must be held. The property was attached in his hands, while in his possession, in this State. If he had not had the property with him, but had left it at his residence in Maine, it could not be said that it was attached here ; but having it with him, we see no reason why it might not be attached in this way, as well as if it had been visible personal property of the defendants, and taken by the officer. If the trustee had brought into this State the goods and chattels of the defendants, and had himself no special property in them which might give him the power to remove them from the State, they could no doubt have been' attached and held on a writ against the
And such, we think, is the doctrine of Jones v. Winchester & Tr., 6 N. H. Rep. 497; and of Libbey v. Hodgdon & Tr., 9 N. H. Rep. 394.
In the former of these cases, it was decided that a person who is not an inhabitant of this State, cannot be held to answer as trustee, unless he had goods of the principal in his hands in this State, or had contracted to pay money or deliver goods to the principal, at some place in this State. The general rule of that case is, that a person who is not an inhabitant of the State, cannot be held to answer as trustee, but the exception is, that if he has goods, chattels, rights or credits of the defendant, in this State, he shall be charged.
In Libbey v. Hodgdon & Tr., Wilcox, J., says: — “ There may be difficulties in procuring legal service of a writ upon a foreign corporation; and so in case of an individual residing in a foreign jurisdiction, it may be difficult or impossible to procure such service of process upon him as to subject him to the jurisdiction of our courts. But in either ease, when the service can be made, or when the person or corporation appears and submits to our jurisdiction, we see no objection to the authority of the court to proceed. If a citizen of another State is found here, and process is served on him personally, that gives the court jurisdiction.”
If this be so, as it undoubtedly is, and a good service may be made upon a non-resident principal defendant, by delivering to him in hand a summons in this State, and the court thereby obtain jurisdiction of the case, it would be difficult, we think, to show any substantial reason why jurisdiction is not also obtained of a trustee, by the service of the writ upon him in this State, if he has, at the time, the property of the principal defendant in his possession in this State.
In this Gase, the trustee had in his possession, in this State, at the time the writ was served upon him, money belonging to the principal defendant, and also notes of his, which had been made and dated here. As to the notes, our statute expressly provides that if the trustee, at the time of the service, had in his possession any promissory note, order, receipt, bill of exchange, &c., the court may appoint a receiver to collect the same, and apply the avails to the payment of the debt and costs. Rev. Stat. ch. 208, § 15, And in regard to the money collected by the trustee, it may well be treated as money had and received by the trustee for the benefit of the principals, and for which he would be accountable any where, and, therefore^ he could be holden as trustee in this State upon that ground. There was no specific contract respecting it, which was to be performed in any particular place.
It can make no difference with the decision of the case, if, as is stated in the argument, the plaintiff was a non-resident also. Non-resident plaintiffs may always bring actions in this State, and prosecute them to judgment, provided they give property security for costs.
We think that the
Trustee must be charged.