Wiggin v. Lewis

19 N.H. 548

• Court: Superior Court of New Hampshire
• Decided: December 15, 1849
• Status: Published

Opinion

Gilchrist C. J.

It appears, in this case, that the trustee’s note, dated on the 15th of December, 1840, and payable to the defendant, for the sum of $200, was presented to Brown by Esty, who said that he held it as collateral security for a debt due him from the defendant. On the 27th of October, 1841, the trustee paid Esty $164 on the note, and Esty released him from any further claim upon it. And we understand that the trustee has never been called upon to pay the balance.

Now this balance was due, and the trustee should be charged with it. Esty held the note merely as collateral security, and could not discharge the maker from all liability to pay it, upon receiving only a part of it. The property of the defendant, in the hands of the trustee, could not be put out of the reach of his creditors by any arrangement of this kind to which they were not parties, and to which they had never given their assent.

This is the only question raised by the case. The auditor finds that if the court should be of opinion that the trustee is not held on account of the Esty note, there is no balance in his hands. We think he is chargeable on account of the balance due on the note, and the amount of his liability must be calculated according to this opinion. The auditor’s report finds the amount due to be $51,26, and he has reckoned the balance due on the Esty note, in stating the sums due from the trustee to the defendant.

Trustee charged.