McAllister v. Brooks

The opinion of the Court was drawn up by Whitman C. J. — By the statement of facts, agreed upon in this case, it appears that the defendant had been summoned, [83] in a process of foreign attachment, as the trustee of the plaintiff, by a creditor of his ; and had disclosed; and thereupon had been adjudged chargeable as such. As the statement is silent, as to whether the debt due to the creditor of the plaintiff was equal to the amount in the hands of the defendant, it is to be presumed that it was so ; especially as nothing in the arguments of the counsel indicates any thing to the contrary. It is admitted, that this action is brought for the benefit of one Austin Preble, to whom the notes declared upon had been assigned before the defendant was summoned as the trustee of the plaintiff. But of this the defendant had not at the time of his disclosure, received such notice as to enable him to make a disclosure of it as a fact. Foster v. Sinclair, 4 Mass. R. 450; and Wood v. Partridge, 11 ib. 491. The counsel for the plaintiff objects, that the disclosure was taken before a justice of the peace, without notice to the parties, as contemplated in the statute, passed in 1830, ch. 469, § 2, and was therefore coram non judice; and that the adjudication, that the defendant was trustee, for that reason, is not conclusive against him. It appears that the plaintiff in that case, and the trustee, were satisfied with that course of procedure ; and if the present plaintiff had been notified and present, it would not have been competent for him to have interfered in the proceeding, or to have put interrogatories. He must have been a’ mere silent spectator of what was going on. And, therefore, when the statute speaks of notifying the parties, it may well be doubted if it was in contemplation that the defendant should be notified. The word parties may be taken perhaps to mean those only, who were parties to what was actually to be done. However this may be, it does not appear that the parties were not notified; and the presumption should be that due proceedings were had, prior to the adjudication. The Court had jurisdiction of the subject matter. The par-; ties were regularly before them; and might have objected, in any stage of the proceedings, to whatever might seem to be irregular. No such objection appearing to have been interposed, it is to be presumed, that, if any ground therefor existed, [84] it was waived. A judgment, having been rendered and duly-recorded, it must stand till reversed by due course of law. And the statute makes it conclusive upon the creditor of the trustee, to the extent of the judgment against him, unless he can question the correctness of the disclosure, which is not attempted in this case. It is next objected that, as it does not appear that the defendant has satisfied the judgment, his defence is not complete. The case of Wise v. Hilton, 4 Greenl. 435, is relied upon as an authority in support of the position. The Court there- say, “ We are’ very clear that the disclosure and trustee judgment did not bar the plaintiff.” And well they might, for the plaintiff therein was not the debtor in the trustee judgment referred to. He was a stranger to it; and of course could not be conclusively affected by it. The decisions, it is believed, have been uniform, that, where there is a subsisting judgment against a trustee, it constitutes a good defence for him, in an action by his principal against him, for the same cause, without proof of satisfaction. Perkins v. Parker, 1 Mass. R. 117; Stevens v. Gaylord, 11 ib. 265; Matthews v. Houghton, 2 Fairf. 377; Norris v. Hall, 18 Maine R. 332. Although in Boynton v. Fly, 3 Fairf. 18, cited by the counsel for the plaintiff, the trustee had satisfied the judgment against the principal, yet the Court do not intimate that such satisfaction was essential to the defence. As agreed by the parties, the plaintiff must become nonsuit.