D. Fay & Co. v. Smith

The opinion of the court was delivered by Redeield, Ch. J. By section eight of the trustee act, (Comp. Stat. 256,) it is expressly provided, that one may be held liable for “ money due to the principal defendant before it has become payable” — “ but the trustee shall not be compelled to pay it before the time appointed therefor by the contract.” Under this statute, it seems to us the contract in this case is of a character to be liable to attachment, by this process. It is clearly deKtum in praesenti, and to some extent solvendum in futuro, although not in the ordinary sense. It is worthy of some consideration, whether such a contract ought not to be attachable, as due presently. It certainly would be so regarded, upon' slight circumstances, showing an intention to put it in this form, to embarrass its attachment, by creditors. Butin any view, neither the trustee, or principal debtor can complain of holding the trustee liable for the contract according to its terms, and such is the judgment of the County Court, as stated in the bill of exceptions. And we think the County Court did right, in applying the endorsement to extinguish the principal debt. And as to the claim of John P. Smith, we think this will not defeat the attachment. The object of the legislature seems to have been, to make negotiable paper attachable, the same as other debts. And an assignment, for a portion of the amount, will not hinder an attachment of the remainder. Nor do we think Smith can be allowed to take his pay in the first interest accruing. He must be [613] regarded as holding a portion of the debt equal to his claim, and the debtor is liable upon this process, for the remainder. Judgment affirmed.