Barney v. Douglass

The opinion of the court was delivered .by Royce, Ch. J. In this case, judgment having passed against the principal defendant, and the trustee having admitted himself indebted upon a negotiable promissory note executed by him to the principal defendant, one Shephard appeared and interposed his claim to the note; — and the validity of that claim, as against Barney, the attaching creditor, is the. only matter to be now determined. The case finds, upon the disclosure and other evidence, that the note was indorsed in good faith, and for sufficient consideration, by Douglass to Shephard, before the same fell due; that the trustee process was served on the trustee in his absence, by leaving a copy at his house in the manner provided by law in such a case ; and that, after such service, and before the trustee had personal notice of it, Shephard gave him notice, by an agent, that he was the assignee, holder and owner of the note. Thus far it is clear, that the attaching creditor is entitled to hold against the claimant. The attachment was perfected by the service made, and did not require personal notice to the trustee, in order to bind the effects in his hands. That it was a full and perfect service appears by a comparison of section seyen of the trustee statute with the law prescribing the mode of serving a writ of summons, and is necessarily implied in section five of the trustee statute, which provides for a case where the process has been served upon the trustee, and he has continued to act in ignorance of that fact. Now the statute of 1841 has* subjected negotiable paper, "whether under or over due, to the trustee process, “unless it shall appear, that the same had been negotiated and notice thereof given to the maker, [101] or indorser, before the service of the process on him.” And here there was a legal service of the process before such notice. But the claimant insists, that his right is saved by section five of the trustee statute, which provides that the trustee shall be protected for any payment made to the principal defendant, and for any liability incurred to a third person, although, the process shall have been previously served upon him, if he had, at the time, no knowledge of the'service. It appears that when thp trustee was, notified by the agent of' Shephard, as before stated, he was told that Shephard would look to him for pay on the note, and he replied, “Very well, I will pay it.” The question is, whether these expressions, under the circumstances, created such a liability of the trustee tó a third person, as the statute contemplates. It is not enough, that they should operate to abridge the defence which he might otherwise make to the note; they must constitute a substantive ground of liability, a direct cause of action, which could be enforced by suit. Had these expressions been used in reference to some demand, held and owned by Shephard, which could only be sued in the name of Douglass, they might, if so intended, have furnished a new cause of action to Shephard, the assignee; Moor v. Wright, 1 Vt. 57, and Bucklin v. Ward, 7 Vt. 195. But here the legal right of action upon the note was already in Shephard by the indorsement, as much so, as if the note had been originally executed to him. What, then, was the effect of the trustee’s declaration to him, or his agent, that “he would pay the pote?” As before remarked, it may possibly have precluded him from making certain defences to the note, which he might otherwise have set up; but we think it gave no new cause of action to Shephard. It was but a promise to do that, which the note, and the indorsement of it to Shephard, already bound him to do. It was not an undertaking to pay more, or less, than the amount of the note, or to pay it in a different manner, or at another time. Nor was it founded on any new consideration, nor intended to furnish to Shephard any new remedy. Hence the only action, which Shephard could bring, would be an action directly upon the note, and not upon this oral promise of the maker. Judgment affirmed.