Sawyer v. Thompson & Trustee

Sawyer v. Thompson & Trustee.

Where the trustee and principal defendant were set up in the writ as being inhabitants of this State, and the trustee pleaded in the usual form, that at, &c., -he had not in his hands, &c., any money, &e., and the plaintiff elected a trial by the jury, and tendered an issue “that the said trustee had money,” &e., as set forth in the plaintiff’s declaration; it was held that the trastee was not thereby precluded from the right of proving in his defence, that he was not, at the commencement of the action, an inhabitant of this State, and was not indebted to the principal defendant upon a contract or promise to be performed within this State.

In the process of foreign attachment, where none of the parties are inhabitants of this State, the party summoned as trustee is not chargeable as the debtor of the principal defendant, unless upon a contract or promise, to be performed within this State.

Review of an action of assumpsit, granted by tbe superior court on petition of tbe trustee, against whom judgment was rendered on default in tbe original action.

Tbe principal defendant and tbe trustee were described in tbe original writ and writ of review as of Salem, N. H., and the plaintiff as of Lawrence, Mass.

Tbe officer returned on tbe original writ, which was dated September 15, 1848, that on tbe 15th of September, 1848, he attached tbe “money,” &c., “ of tbe defendant, by leaving at tbe last and usual place of abode of Thomas Fittspatrick, a true and attested copy of this writ,” and also summoned the defendant, by leaving at Ms last and usual place of abode a true and attested copy of the writ.

At tMs term the trustee pleaded in the usual form, and the plaintiff having elected a trial by jury, tendered an issue “ that the said Fittspatriek had money,” &c., as set forth in the plaintiff’s declaration.

The plaintiff, by his specification, claimed that the trustee was indebted to the defendant for the work and labor of the defendant, and of his hands and horses, done in the month of July, August and September, 1848, in the sum of 1125,00, and gave credit for §44,00.

On trial, the evidence of the plaintiff tended to show that one Burke had a contract in July, 1848, for work to be done in Salem, N. H., on the Manchester and Lawrence Railroad: That Thompson and other men were then in the employment of Burke, and that Fittspatriek in that month took a job of Burke on the road, and continued the work begun by Burke, employing Thompson and other hands as they had been before employed by Burke, and that Thompson continued to work in tMs way for the trustee until September 6, 1848.

The trustee introduced evidence tending to show that about the same 6th of September, the contract between him and Burke was given up; that Burke assumed the payment of all the liabilities contracted by the trustee in the work, and paid and discharged them.

It appeared that Thompson in 1848 resided in Charlestown, Mass., and in July that year went to Salem to work on this road for Burke, leaving his family at Charlestown, and boarding at a private house in Salem: That previous to the 6th of September he went to Connecticut, and engaged Mmself to work on a rail-, road in that State; came back to Salem, and on the 6th of September stopped work there, and on the 10th of September left Salem and this State, and went to Connecticut, and remained there several months.

It also appeared that the trustee had resided for twenty-six years preceding the trial, and now resides, in Boston, Mass.: that his family, while he was engaged in Salem on the said road, resided in Boston: that he went home to Boston on Sundays, and boarded at a private house in Salem; that previous to the 10th of September, 1848, he gave up his contract with Burke and returned to Boston, and has never since had any residence, permanent or temporary, in this State.

The court directed a verdict for the trustee, which the plaintiff moved to set aside.

Marston, for the trustee.

1. The trustee was not liable to be summoned as trustee, because he was not a resident within the State, and was not personally amenable to the jurisdiction of the court. Ray v. Underwood Trus. 3 Pick. 302; Hart v. Anthony & Trus. 15 Pick. 445; Danforth v. Penny & Trus., 3 Met. 564; Cushing’s Trustee Process, chap. 2, § 316.

2. The court have no jurisdiction of this action whatever, because, at the time of the alleged service of the writ, neither of the parties-to the action had any residence, temporary or otherwise, in the State of New-Hampshire. Tingely v. Bateman & Trus. 10 Mass. 343.

3. Whatever form of pleading may be adopted, the court will discharge the trustee when it appears, either by the record of the court or the admission of the parties, or the verdict of the jury, that he was not a resident within the State, and was not amenable to its jurisdiction.

4. Effects in the hands of a trustee are to be considered as local, and the process as a proceeding in rem. There can no more be an attachment of property beyond the jurisdiction of the court, by means of the trustee process, than by the ordinary mode of attachment. Tingely v. Bateman, and Danforth v. Penny, before cited.

Stiekney & Tuele, for the plaintiff.

The trustee cannot, in the present state of the pleadings, avail himself of the defence that at the service of the writ he was not a resident of this State.. He has waived it by his plea.

Though the trustee process by our law goes against the principal defendant and trustee in the same action, yet they are considered and treated by the court as separate and distinct actions, as much so as if brought separately; and where several trustees are summoned in the same action, it is considered as separate against each trustee. Ingraham v. Olcock, 14 N. H. Rep. 243. The same principle, therefore, in regard to pleading, should be applied to trustees as are applied to actions against principal defendants.

The principal defendant and trustee are described in the original writ and writ of review as of Salem, N. H. No exception, therefore, appears upon the face of the papers.

The plaintiff elected to try the question as to the trustee by the jury, and the trustee pleaded that he had not at the time of the service of the writ, and has not since had in his hands, any money, goods, chattels, rights or credits of the principal defendant, and thereof put himself on trial. He replied that he had in his hands money, &c., of the principal defendant, and the trustee joined that issue.

Now we contend that the trustee cannot under this plea prove, in defence of the action, that he was not a resident of the State at the time the action was commenced. By putting in this plea to the merits, he submits himself to the jurisdiction of the court; he admits himself a resident of the State for the purpose of this trial, and waives any defence which he might have on the ground that he resided out of the State.

What is the question presented by the issue in this case ? It is, whether the trustee had in his hands any money, &c., of the principal defendant. Proving that he was not a resident in the State has no tendency to show that he was not indebted to the defendant. See Cushing’s Trustee Process, 135.