Peck v. Monahan

Powers, C. J. When this writ was served on the Winooski Savings Bank, the fund in question was impounded to await the determination of the suit and the final order of the court. Heno v. Thomas, 64 Vt. 358. The bank became a mere stakeholder, charged with the duty of holding the fund, to be paid over only under the "compulsive force of final judgment.” Wilder v. Weatherhead, 32 Vt. 765. It was required by law to make full disclosure of the facts, and thus compel the plaintiff to raise an issue and establish its liability or submit to its discharge. For, had the bank complied with this requirement, it would have appealed, prima facie, that the deposit in question belonged to the Fidelity and Deposit Company. In such circumstances, fraud in the transfer would not be presumed, but would have to be proved. Edson v. Sprout, 33 Vt. 77. But the bank did not take this course. Instead, it paid over the fund on the orders, which had been given and of which it had notice before the service of the writ herein, without waiting for the plaintiff to contest their validity, if he so desired, under P. S. 1725. It made these payments at its peril. The result is not an absolute liability to the plaintiff for the amount so paid, but such payments were prima facie voluntary, and the bank takes the burden of showing the validity of the orders. Lyman v. Tarbell, 30 Vt. 463; Wheeler v. Winn, 38 Vt. 122; Dow v. Taylor, 71 Vt. 337. In the ease first cited, the note in question was transferred and notice given before service of the trustee writ; after such service, the trustee paid the note to the assignee. The commissioner found that the transfer was fraudulent and that the note remained the property of the defendant. The court said that the burden was on the trustee to show that the transfer was bona fide and upon a valuable consideration. Should it be suggested that this was unnecessary to a proper decision of the case before the court, the reply would be that the point was briefed and considered and therefore the dictum is [315] authoritative. Hall v. Hall’s Est., 84 Vt. 259. So the case is iu point here, though this transfer is not shown to be fraudulent. In Wheeler v. Winn, not only had the note been assigned and notice given before service of the trustee writ, but the trustee had given a new note running to the assignee. After such service, suit was brought in Massachusetts on this new note, and the trustee paid it. The court said that in these circumstances, the burden was on the trustee to show that there was no defence to the Massachusetts suit. Here, again, there was. a finding of fraud, but what was said about the burden was apparently deliberate. To the same effect is Stevens v. Dillman, 86 Ill. 233. In such eases, the good faith of the trustee affords no protection, for the service of the process upon him is sufficient notice that the ownership of the funds is in question, and that for his own protection he must await judgment before paying. Dow v. Taylor, supra. The agreed statement of facts before us does not show that there was any consideration for the order given to the Fidelity and Deposit Company, and, the burden being on the bank, it must be held that its payment affords no protection against this suit. The plaintiff does not question the other orders and we give them no attention. Judgment as to the Winooski Savings Bank reversed-, and judgment that it is chargeable as trustee for the sum of $113.18 and interest thereon from August 25, 1905.