Wilkinson v. Hall

Thomas, J. The defendant relies upon the judgment against him as trustee in the process of foreign attachment in the courts of Vermont, as a bar to this suit. Though the debt due from him was a negotiable promissory note, we understand that, before its negotiation to a third person, the promisor is, under the laws of Vermont, liable to be charged as the trustee of the promisee; but that if the maker of the note had notice of the transfer before the service, he would not be charged. Barney v. Douglass, 19 Verm. 98. Kimball v. Gay, 16 Verm. 131. Chase v. Haughton, 16 Verm. 594. It is obviously just that, if he has been compelled to pay the debt once by the judgment of a court of competent jurisdiction, he should not be compelled to pay it again. If therefore the debt was recovered of the defendant under a process of foreign attachment, fairly and without collusion on his part, he may effectually plead it in bar here. Hall v. Blake, 13 Mass. 153. Embree v. Hanna, 5 Johns. 101. But such judgment is not fairly obtained, if the defendant aided in procuring it, by withholding facts essential to the determination of the cause. 13 Mass. 157. 2 Kent Com. (6th ed.) 119. The fact of the negotiation and indorsement of the note, before the service of the trustee process upon this defendant, was most material to the right decision of the cause. The plaintiff offered to show that the defendant had knowledge of the transfer to the present plaintiff before such service. If he had such notice, he was bound to disclose it. If, after such disclosure, he had been charged, the judgment might have been still a good bar. But the knowledge of such transfer, and the failure to disclose it, are competent and most material evidence upon the question whether the judgment was fairly obtained, or by the aid and collusion of the defendant. The evidence should therefore have been admitted. Exceptions sustained.