[535]*535The opinion of the court was delivered by
Peck, J.
The principal question is, whether one of two joint and several makers of a promissory note payable to the principal debtor, or bearer, can be held as trustee of the payee, when the note was, bona fide, negotiated to the claimant for a valuable consideration, and notice thereof given, by the claimant, to the other maker of the note, (but not to the trustee,) before the commencement of the trustee process, the suit having been commenced before the note became payable.
Previous to the statute of 1841, subjecting negotiable paper to trustee process, which is still in force, (Gen. Stat., ch. 34, § 47, p. 312,) a negotiable note, while current, was not liable to trustee process, whether it had been negotiated or not before the commencement of the trustee action. In Hinsdill v. Safford et al., Trustees of Whiton, 11 Vt. 309, the note had been negotiated while current before the commencement of the suit, but no notice of the transfer had been given to the maker till after the service of the trustee process, and it was held that the maker was not liable as trustee of the payee. In Little v. Hale, Trustee of Carlton, 11 Vt. 482, the note was negotiable while current, but not till after the service of the trustee process, yet the court decided that the trustee was not chargeable. Upon the same principle, in Hutchins v. Evans, Trustee of Lyman, 13 Vt. 541, where the note had not been negotiated at all, but remained in the possession of the payee, still current, it was decided that the maker was not liable as trustee of the payee. This was upon the ground, that if the trustee was adjudged liable, it would leave the payee with power by subsequently transferring the note, while still current, either to defraud an innocent purchaser, or subject the trustee to a second payment of the note. But in case of notes remaining in the hands of the payee till over due, it was held that they might be attached and held by trustee process, unless they had been transferred, and notice of the transfer given to the promissor before the service of the trustee process on the alleged trustee. As the note in question in this suit was negotiated to the claimant while current, and before the trustee suit was commenced, the trustee, even in the absence of notice, to either maker, cannot be held liable except by [536]*536force of the statute subjecting such notes to trustee process. The statute is substantially the statute of 1841, and pz-ovides that, “ all negotiable paper, whether under or over due, may be attached by, and the same is subject to the operation of the trustee process, unless it shall appear that the same had been negotiated, and notice thereof given to the maker or indorser before the service of the trustee process on him,” &c.
The question then arises, whether notice to one joint and several maker, where there are two or more, is notice to all; or more properly, whether notice to one satisfies the statute in this respect, and protects the debt from attachment when in the hands of a bona fide assignee for value, or whether it requires notice to both. The language of the statute is susceptible of either construction. If the trustee and his co-maker were partners, and had signed the note in that capacity, no doubt notice to one would be sufficient. It is claimed on the part of the defense, that it is a general rule that notice to one joint contractor, whether partners or not, is notice to all. We are referred to cases in which it has been decided that a demand of payment on one of two or more joint and several makers, of a note, is a sufficient deznand to charge the indorsez-s. Among the cases cited is Harris v. Clarke et al., 10 Ohio 5, in which it is so held. On the other side, the case Union Bank of Weymouth and Braintree v. Willis, 8 Met. 504, is referred to as holding the contrary doctrine. Some very good reasons are assigned for both of those conclusions ; but which is the better doctrine as applicable to that subject we need not decide. The general cuz-rent of authorities seems to be, that in case of joint indorsers. not partners, notice of demand and non payment must be given to all the indorsers, in order to hold all. The reason is stronger in favor of requiring notice to each indorser, as the object of the notice is to enable the indoz-sers to take up the paper, and secure themselves by proceeding against those primarily liable. But these cases are not decisive of the question involved in this case. No general rule can be laid down applicable to all cases, as to whether notice to one joint contractor, or joint and several promissor, is equivalent to notice to all. It depends on the purpose of the notice, and the object to be accomplished by it. For some purposes notice to one is notice [537]*537to both, in the absence of fraud ; as, where two jointly make a purchase, one of whom has notice or previous knowledge of a defect iu the property, or other fact, which otherwise it would be the duty of the seller to communicate, such notice to, or knowledge of one, is notice to both, as in Lyman et als. v. The Bank of United States, 12 How. 225. But to determine in any particular class of cases, whether notice to one is equivalent to notice to all, it is necessary to look' for the reason of requiring notice, and the purpose to be answered by it. It is obvious that by the statute subjecting current negotiable paper to trustee process, and -in requiring notice of the transfer in order to have such transfer prevail over an attachment, it was intended to put it on the same ground in this respect, as the court had previously put negotiable paper that was over due before the transfer of it, and required notice for the same reason and purpose which led the court to require notice in case of the assignment of over due negotiable paper subject to trustee process. That reason could not have been to perfect the title of the endorsee as between him and the endorser, for that is perfected by the endorsement and delivery ; nor could it be to perfect the title or right of action in the endorsee against the maker, for they are perfect and complete without notice, so that even a payment by the maker to the payee after the transfer without notice of such transfer, would be no defense against the endorsee. By the law merchant, on such transfer, the maker is no longer the debtor of the payee or former holder, but becomes instanter without notice, the debtor of the endorsee, and he must at his peril take notice who the holder is. The ground then for requiring notice of the transfer to protect such paper from trustee process, is to prevent fraudulent transfers; and transfers after the attachment under pretense that they were made before. It is upon the same principle that the purchaser of personal property is required to take possession ; or if the property is in possession of a third person, at least to give notice to him of the transfer of title and obtain his consent to hold it itt behalf of such purchaser. That is, in both cases, in order to prevent fraudulent sales of property or dioses in action, the purchaser is required to do an act of ownership, before the attachment; in the [538]*538one ease, to follow np his purchase by giving notice, and in the other by taking possession.
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[535]*535The opinion of the court was delivered by
Peck, J.
The principal question is, whether one of two joint and several makers of a promissory note payable to the principal debtor, or bearer, can be held as trustee of the payee, when the note was, bona fide, negotiated to the claimant for a valuable consideration, and notice thereof given, by the claimant, to the other maker of the note, (but not to the trustee,) before the commencement of the trustee process, the suit having been commenced before the note became payable.
Previous to the statute of 1841, subjecting negotiable paper to trustee process, which is still in force, (Gen. Stat., ch. 34, § 47, p. 312,) a negotiable note, while current, was not liable to trustee process, whether it had been negotiated or not before the commencement of the trustee action. In Hinsdill v. Safford et al., Trustees of Whiton, 11 Vt. 309, the note had been negotiated while current before the commencement of the suit, but no notice of the transfer had been given to the maker till after the service of the trustee process, and it was held that the maker was not liable as trustee of the payee. In Little v. Hale, Trustee of Carlton, 11 Vt. 482, the note was negotiable while current, but not till after the service of the trustee process, yet the court decided that the trustee was not chargeable. Upon the same principle, in Hutchins v. Evans, Trustee of Lyman, 13 Vt. 541, where the note had not been negotiated at all, but remained in the possession of the payee, still current, it was decided that the maker was not liable as trustee of the payee. This was upon the ground, that if the trustee was adjudged liable, it would leave the payee with power by subsequently transferring the note, while still current, either to defraud an innocent purchaser, or subject the trustee to a second payment of the note. But in case of notes remaining in the hands of the payee till over due, it was held that they might be attached and held by trustee process, unless they had been transferred, and notice of the transfer given to the promissor before the service of the trustee process on the alleged trustee. As the note in question in this suit was negotiated to the claimant while current, and before the trustee suit was commenced, the trustee, even in the absence of notice, to either maker, cannot be held liable except by [536]*536force of the statute subjecting such notes to trustee process. The statute is substantially the statute of 1841, and pz-ovides that, “ all negotiable paper, whether under or over due, may be attached by, and the same is subject to the operation of the trustee process, unless it shall appear that the same had been negotiated, and notice thereof given to the maker or indorser before the service of the trustee process on him,” &c.
The question then arises, whether notice to one joint and several maker, where there are two or more, is notice to all; or more properly, whether notice to one satisfies the statute in this respect, and protects the debt from attachment when in the hands of a bona fide assignee for value, or whether it requires notice to both. The language of the statute is susceptible of either construction. If the trustee and his co-maker were partners, and had signed the note in that capacity, no doubt notice to one would be sufficient. It is claimed on the part of the defense, that it is a general rule that notice to one joint contractor, whether partners or not, is notice to all. We are referred to cases in which it has been decided that a demand of payment on one of two or more joint and several makers, of a note, is a sufficient deznand to charge the indorsez-s. Among the cases cited is Harris v. Clarke et al., 10 Ohio 5, in which it is so held. On the other side, the case Union Bank of Weymouth and Braintree v. Willis, 8 Met. 504, is referred to as holding the contrary doctrine. Some very good reasons are assigned for both of those conclusions ; but which is the better doctrine as applicable to that subject we need not decide. The general cuz-rent of authorities seems to be, that in case of joint indorsers. not partners, notice of demand and non payment must be given to all the indorsers, in order to hold all. The reason is stronger in favor of requiring notice to each indorser, as the object of the notice is to enable the indoz-sers to take up the paper, and secure themselves by proceeding against those primarily liable. But these cases are not decisive of the question involved in this case. No general rule can be laid down applicable to all cases, as to whether notice to one joint contractor, or joint and several promissor, is equivalent to notice to all. It depends on the purpose of the notice, and the object to be accomplished by it. For some purposes notice to one is notice [537]*537to both, in the absence of fraud ; as, where two jointly make a purchase, one of whom has notice or previous knowledge of a defect iu the property, or other fact, which otherwise it would be the duty of the seller to communicate, such notice to, or knowledge of one, is notice to both, as in Lyman et als. v. The Bank of United States, 12 How. 225. But to determine in any particular class of cases, whether notice to one is equivalent to notice to all, it is necessary to look' for the reason of requiring notice, and the purpose to be answered by it. It is obvious that by the statute subjecting current negotiable paper to trustee process, and -in requiring notice of the transfer in order to have such transfer prevail over an attachment, it was intended to put it on the same ground in this respect, as the court had previously put negotiable paper that was over due before the transfer of it, and required notice for the same reason and purpose which led the court to require notice in case of the assignment of over due negotiable paper subject to trustee process. That reason could not have been to perfect the title of the endorsee as between him and the endorser, for that is perfected by the endorsement and delivery ; nor could it be to perfect the title or right of action in the endorsee against the maker, for they are perfect and complete without notice, so that even a payment by the maker to the payee after the transfer without notice of such transfer, would be no defense against the endorsee. By the law merchant, on such transfer, the maker is no longer the debtor of the payee or former holder, but becomes instanter without notice, the debtor of the endorsee, and he must at his peril take notice who the holder is. The ground then for requiring notice of the transfer to protect such paper from trustee process, is to prevent fraudulent transfers; and transfers after the attachment under pretense that they were made before. It is upon the same principle that the purchaser of personal property is required to take possession ; or if the property is in possession of a third person, at least to give notice to him of the transfer of title and obtain his consent to hold it itt behalf of such purchaser. That is, in both cases, in order to prevent fraudulent sales of property or dioses in action, the purchaser is required to do an act of ownership, before the attachment; in the [538]*538one ease, to follow np his purchase by giving notice, and in the other by taking possession. In Massachusetts by a series of decisions it is held that no notice is necessary in such case to prevent an attachment of such debt by trustee process; and upon the ground that nothing is left after such assignment which equitably and legally belongs to the principal debtor. It is only upon the ground of policy to prevent fraud that in this State notice is held necessary. In Britton v. Preston, Trustee of Langley, in which it was held that the rule requiring notice only applied to the first transfer, Phelps, J., speaking of these Massachusetts cases, says, “ this doctrine has? always appeared to me tobe most consonant to principle, although it inustbe admitted there are considerations of policy which make strongly in favor of a different rulebut says also that in this State the rule has been adopted that prevails in Connecticut, that if notice to the maker be wanting, the trustee process will hold, notwithstanding the assignment. But he further says that, “ there is no propriety in talcing one man’s property to pay the debt of another; and nothing reconciles me to the rule adopted in this State except the consideration that it may prevent frauds.” This shows that the requirement of notice rests merely upon the ground of policy to prevent fraudulent transfers. The question then is, whether this rule of policy is not satisfied by notice to one of the makers, so as to perfect the transfer of the debt as against the attachment by trustee process. It appears that the claimant, soon after the note was transferred to him, made two written notices and sent by mail, one to each of the signers of the note j one received his notice before the commencement of this suit, and the other (this trustee,) did not. This is an act of ownership on the part of the claimant as significant of a transfer of the debt as if both notices had been received before the service of the writ. It ought to be effectual unless prevented by some absolute rule of law. It could hardly be claimed .that the signer who received the no.tice before the commencement of the suit could be held as trustee. If he cannot, it must be on the ground that the debt was put beyond attachment as the property of the payee ; and if so,"how can the other signer be held for the same debt. It is the debt and not the trustee that is the subject of attachment. The trustees have [539]*539no legal interest in the question whether the debt they owe is held by the process or not; it is indifferent to them to whom they pay. The parties in interest in the question are the attaching creditor and the assignee of the demand. There would seem therefore to be no sound reason in saying that the same debt is attachable in the hands of one of the signers and not in the hands of the other ; as the effect is the same as if both can be held as trustees. If one is liable as trustee the other, should be also ; otherwise one joint and several maker is liable to the assignee, and the other to the attaching creditor, and the one who first collects the debt would thereby extinguish the right of the other, without regard to priority in the commencement of the suits. Personal property may be attached by trustee process while in the possession of a bailee. If, instead of a debt due from the makers of this note, it had been personal property in their joint possession, attached by the ordinary process of attachment, notice to both bailees would not seem to be necessary to perfect the sale as against the attachment. The result must be the same if such per_ sonal property were attached, as it may be, by trustee process, as the two cases differ only in the mode of attachment; and no good reason is perceived why notice to one joint debtor, when the debt, instead of tangible property, is attached, should not be equally effectual. We think in view of the reason which led to the adoption of this rule requiring notice, and the purpose intended to be accomplished by it, that the notice given in this case perfected the transfer of the note, and put the debt beyond the reach of attachment as the property of the payee, especially as the plaintiff had notice of the transfer before commencing his suit; and consequently neither debtor can be holdeu as trustee in respect to it.
There is one peculiar feature of this case not noticed. The plaintiff in this action is co-signer of the note with the alleged trustee, and received a written notice from the claimant of the transfer before he commenced this suit. If the plaintiff has the same legal rights as any other attaching creditor, he certainly has no greater, and having attached the debt with full notice of the transfer, he has far less equity on his side than a creditor attaching in ignorance of any transfer.
[540]*540The judgment against the trustee and claimant is reversed and judgment that the trustee is not chargeable aud that the trustee and claimant recover their costs.