Philbrick v. Philbrick

A statute under which the signer of a note, made in this State, and payable generally to a citizen of another State, or order, may be charged as the trustee of the payee, is not unconstitutional as impairing the obligation of contracts.

Foreign Attachment. The following facts appeared from the disclosures of the trustees: July 25, 1853, the trustee, Edward Philbrick, the father of the principal defendant, being aged, and indebted to the amount of about $500, and having little property beside a lot of land in Concord, applied to the defendant (who then was, and ever since has been, a resident and citizen of the State of Illinois,) for assistance. The defendant accordingly came to this State, and, being willing to loan and advance to Edward $1200 on said land, let him have $500, taking his note therefor, and gave him his (the defendant’s) note for $700 more, payable $100 and interest yearly, that being about as Edward needed the money for his support. At the same time the defendant took a note from Edward for $700, payablé to him, or his order, on demand, with interest annually; and it was agreed between them that the payments made by the defendant on his note to Edward should be indorsed thereon, and said note should offset Edward’s $700 note to the defendant, as long and so far as any portion of it remained unpaid. Edward then gave the defendant a mortgage of said land, to secure payment of said two notes to him. Said notes were made at Concord, N. H., and payable to the defendant, or order, generally. On the 22d day of June, 1858, Edward sold and conveyed said land, subject to said mortgage, to the Union School District in Concord, for $2,000, the district agreeing to pay the defendant the amount due on said notes, as part of said consideration, and Edward endorsed and transferred to the district the note of the defendant to him, that the offset might be made as agreed. On said note payments had been made and endorsed thereon, so that there was then due on the $700 note to the defendant the sum of $460.81, and upon the $500 note there was due the sum of $664.57. These sums the district assumed and agreed to pay the defendant, and paid Edward the balance of the $2,000. Edward then gave notice to the defendant of the sale, and that the district were ready to pay him the amount due on the notes, when called for, which said district were ready to do, and to give up to him his said note. After-wards, and before the defendant had received the amount from the district, the writ in this action was served upon Edward, and the district as trustees. The action was entered in court without any service having been made upon the defendant, but an order of notice on him by publication was made after entry, and complied with, upon which an appearance was entered for him by his attorney.