Boardman v. Roger

[593] The opinion of the court was delivered by Redfield, J. Of the right of a mere trustee, by the consent of the one beneficially interested, to sustain an action, in his own name, upon a promissory note payable to bearer, for the benefit of the real owner, there can be no doubt. Smith v. Burton, 3 Vt. 233. Bank of Burlington v. Beach, 1 Aik. 62. Baxter v. Buck, 10 Vt. 548. . We do not see, why this note was not the absolute property of McKnight. He was not the agent, or trustee, of the creditors, for the purpose of taking the note. So far from that, the officer had no right, except at his own peril, to take any such note. It is not impossible, that, in case of the utter insolvency of the sheriff, and the creditors having no other remedy, they might, in a court of equity, reach this note; but even this is questionable. They certainly could not control the note, short of showing a case of insolvency and fraud, — neither of which appear in the present case. That being the case, McKnight might divest himself of all interest in the note, by an absolute gift to the plaintiff, if he saw fit. Judgment affirmed.