Culver v. Parish

Waite, J. At the time when the copy was left in service with the defendant, he was indebted to Ford, the absconding debtor, by a promissory note, made by the defendant and his wife, in the sum of one thousand dollars, payable to him, or order, on demand, with interest. While this note remained the property of Ford, it was competent for the plaintiff, under the provisions of our statute relating to foreign attachments, to attach the debt thus due from the defendant; and that attachment could only be defeated, by a transfer of the note before it became due. Enos v. Tuttle, 3 Conn. R. 27. Was the transfer in the present case, so made? If it was, then the effect was to defeat the plaintiff’s lien; otherwise, it will remain. Precisely how long the payee of a negotiable promissory note, payable on demand, may retain it, and then indorse it, before it becomes over-due, does not appear to have been determined. In order to charge an indorser, in such case, payment must be demanded and notice of the dishonour given, within a reasonable time. Lockwood v. Crawford, 18 Conn. R. 362. In the present case, when the attachment was made, the payee continued the holder of the note. A period of more than twenty days had elapsed after the making of the note; and payment had been several times demanded of the defendant. Under such circumstances, we think, that the transfer which was subsequently made, was not made before [412] the note became due, and consequently, did not vacate the plaintiff’s lien. The circumstance that a mortgage was given as collateral security, does not, in our opinion, vary the case in favour of the defendant. It would rather seem to indicate an understanding of the parties, that the debt should be suffered to lie, and not that the note, although in form negotiable, should be put in circulation as mercantile paper. It is however said, that if the note were negotiated after it became due, yet as the indorsement passed the legal title, it is liable, in the hands of the indorsees, only to such equities as attach to the note itself, and not to claims arising out of collateral matters. And this is undoubtedly so. Thus, if a debt be due from the payee to the maker, it cannot be set off against the note in a suit by the indorsees. Robinson v. Lyman, 10 Conn. R. 31. Stedman v. Jillson, Id. 55. Burrough v. Moss & al. 10 B. & C. 558. (21 E. C. L. 128.) But this rule does not apply to an attachment of a debt under our foreign attachment laws. They provide, that any debt due to the absconding debtor may be attached; and there is no exception in our laws, as there is in those of Massachusetts, in favour of debtors upon negotiable securities. Cushman v. Haynes & Truse, 20 Pick. 132. A debt due upon a negotiable promissory note, is as much liable to attachment as any other debt, with this qualification, that when the note is negotiated before it becomes due, it will defeat the attachment. Enos v. Tuttle, ubi sup. This qualification is allowed, for the purpose of giving effect to the law making such instruments negotiable, that indorsees may take them, before they become payable, without enquiring whether any liens have been created upon them, while in the possession of previous holders. But where they take them after they become payable, their situation is different; and it is for them to enquire, whether they still remain valid securities. Thus, if a promissory note is paid, and then indorsed before it becomes due, such payment will not avail the maker in a suit in favour of an indorsee without notice. But if the payment was made to a holder, after the note became due, it will bar any suit in favour of any subsequent indorsee. [413] Our advice therefore is, that the plaintiff is entitled to judgment. In this opinion the other judges concurred. Judgment for the plaintiff.