Puffer v. Graves, 26 N.H. 256

Bell, J. Under our statute, (Rev. Stat. ch. 208, § 18,) the indorsee has no other or greater rights than the payee • of a note, in case of a trustee suit, charging the maker as trustee of the payee, unless he can show that the same was transferred to him in good faith and for an adequate consideration, before the service of the trustee process.

No evidence is offered in this case having a tendency to show these facts, and the maker of the note was, therefore, properly charged as if there had been no transfer of the note, and the record of the judgment has the same force and effect against the assignee as it has against the payee. We regard it as settled elsewhere, upon reasons which have equal force here, that if the trustee discharge himself upon his examination, the judgment is no defence to an action brought by the defendant for the same cause; for if that were allowed he would be able to cancel the debt or other cause of action by his declaration.

Graves v. Brown, Mass. Rep. 334; Cushing’s Trus. Process, § 280. It has been decided here that the trustee process, though in its form a single process, is in substance and in point of law to be deemed and treated as several, and not as a joint process; as constituting separate legal proceedings in favor of the plaintiff against the principal defendant, and in favor of the plaintiff against the trustee. Ingraham v. Olcock & Trustees, 14 N. H. Rep. 243.

A necessary consequence of the separate character of these proceedings is, that neither of the parties can be affected by what is done in the case of the other, except so far as the property of the debtor may be subjected, by the judgment against the trustee, to the process of the debtor. This view is confirmed by the fact that no provisiozi is made by the statute for compelling or permitting the defendant to become in any way a party to the controversy between the creditor and the trustee, as to the amount in the trustee’s hands. By

section 18 he may be required to give certain information relative to the possession and disposition of promissory notes; but he seems, even in this, to stand rather in the position of a witness, or a defendant in a bill of discovery, than of a party.

Provision is made by which assignees from the debtor, or persons claiming adversely to him, may be permitted to maintain tfiteir claims, but those provisions do not seem to apply to the defendant himself. ‘We are, therefore, of the opinion that the judgment rendered in the case between the creditor and the trustee, is not evidence against the debtor for any other purpose except to show the amount for which he was charged; and that the disclosure of the trustee is, as to the defendant, but a declaration of a party, which may be evidence against himself, but not in his favor. Verdict set aside.