
    Kibling v. Burley.
    Where a negotiable note is not made or payable in the State, and the parties thereto do not reside, at the time of making, in the State, the maker cannot be charged as trustee of the payee.
    Foreign Attachment. The trustee in this action having completed his disclosure, from which it appeared that prior to the service of the process upon Mm he had received notice from the endorsee of the note on account of which the plaintiff sought to charge Mm, that said note had been transferred to said endorsee, and it being admitted, for the purposes of this case, by the plaintiff’s counsel, that said note was not made or payable within this State; and also, that at the time of making said note, and at the time of the service of the process on the trustee, both of the principal defendants resided without the State, no service having been made on said defendants; and it appearing also that said trustee resided within this State, the counsel for the plaintiff moved the court for an order upon the principal defendants, to appear and answer on oath all interrogatories respecting the possession, transfer, or other disposition of such note. The court declined making such order, and the question was transferred for the consideration of this court.
    
      Duncan, for the plaintiff.
    
      Blaisdell, for the trustee.
   Woods, J.

The process of foreign attachment, or trus-. tee process as it is otherwise termed, owes its origin in this State to the province law of the 4th Geo. I., entitled “ An act to enable creditors to receive their just debts out of the effects of their absent or absconding debtors.” It provided (section 2) a form of process “where no goods, effects or credits of an absent or absconding debtor in the hands of his attorney, factor, agent or trustee, shall be exposed to view, or can be come at so as to be attachedand that “if judgment be rendered for the plaintiff, all the goods, effects or credits which are in the hands of such attorney, factor, agent or trustee, to the value of such judgment, if so much there be, shall be liable and subjected to the execution granted upon such judgment for or towards satisfying the same.” The proceedings under this act were much, the same as those provided by tbe laws now in force on tbe same subject.

. Tbe statute of 1791, which was substituted for tbe pro-, vincial statute, provided for summoning and charging, as tbe trustee of the debtor, “ any person having in bis possession any money, goods, chattels, rights or credits of any debtor.”

• Tbe provisions of this statute were substantially embraced in that of 1829, which describes in tbe same terms tbe property of debtors liable to attachment in tbe bands of trustees; as does also tbe Revised Statutes of 1842, cb. 208, sec. 8, on tbe same subject.

It may be remarked that this process is unknown to tbe common law, and is the creature of tbe statute,0and that its scope and effect do not extend beyond tbe express provisions which tbe statutes contain.

Tbe statutes on this subject are founded, so far as they, relate to absent or absconding debtors — by which terms are meant debtors not residing within tbe jurisdiction of tbe State — upon tbe clear and well settled right of States to provide, in eases of insolvency, for tbe payment of debts due to their own citizens, by sequestrating, by tbe appropriate proceedings, tbe property of tbe foreign debtor found within their borders.

Without adverting to tbe various questions that have arisen, as to what things in action were liable to this particular process, it will suffice to say that it has always been held in this State and elsewhere, that money due on negotiable paper was not so liable, because its negotiable character, as commonly recognized in mercantile countries, was incompatible with such liability. Such was in substance tbe language of tbe court in Stone v. Deane, 5 N. H. 22, 502, decided in 1831.

A statute passed since that decision, and embodied in tbe Revised Statutes of 1842, has, however, changed tbe law in that particular, and has subjected negotiable paper, made under such, circumstances as to derive its effect and construction from the laws of this State as the- lex loci, to the control of the process of foreign attachment to a certain extent; that is to say, where the note is made or payable in the State, or the parties to it, at the time of its making, reside in the State. Rev. Stat., ch. 208, sec. 18.

The note in question in this case was not made or payable in the State, nor does it appear that the parties at the time of its making resided within' our borders. It is not, therefore, a note described in the statute.

To hold, therefore, that the maker of such a note could be chai-ged as the trustee of the payee, would be in derogation of the law, as declared in Stone v. Deane, and as well established in familiar practice, until the passage of the recent statutes referred to. It would, moreover’, l’aise a question which the framez’S of those statutes saw fit to avoid; namely, whether a judgment, charging, as the trustee of the payee, the maker of a note negotiable by the law merchant at the time and place of its execution, would be in pei’fect harmony with the rights of all parties.

It is ai so a substantial ground for denying the motion, that the statute makes no provision for citing izz the indorsee, except in those cases in which the note is made or payable as the statute points out.

The Court of Common Pleas were, therefore, unquestionably correct in denying the motion.

Motion denied.  