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17 Vt. 589

Boardman v. Roger

Supreme Court of Vermont

Decided April 15, 1845

Supreme Court of Vermont · decided 1845-04-15

<p>A mere trustee may sustain an action as bearer of a promissory note, made payable to a person specified or bearer, for the benefit of the owner, by bis consent.</p> <p>And such action may be sustained by one, as bearer, by direction of the legal owner of the note, though the note may never have been delivered to the person to whom it is made payable, and though his name may have been used as payee without his consent.</p> <p>An officer, who takes from the receiptor of property attached a note, in satisfaction of the receiptor’s liability for having permitted the property to be wasted, in the absence of all authority from the creditor so to do, becomes himself the absolute owner of such note.</p> <p>And if such note be sued in the name of a mere trustee, for the benefit of the officer, the officer, by an absolute and unconditional conveyance of his interest in the note to such trustee, taking back from the trustee a release i from all liability on account of the suit, although such conveyance and release are wholly without consideration, is so divested of interest in the suit, as to become a competent witness for the plaintiff.</p>

Relies on Bank of Burlington v. Beach · Baxter v. Buck · Smith v. Burton

Good law ✅— No negative treatment on recordhow we know

Decided 1845-04-15

How this case has been cited

Cited by 3 later decisions — most recently March 1879

3 state decisions

101845185018601870decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*593The opinion of the court was delivered by

Redfield, J.

¶2Of the right of a mere trustee, by the consent of the one beneficially interested, to sustain an action, in his own name, upon a promissory note payable to bearer, for the benefit of the real owner, there can be no doubt. Smith v. Burton, 3 Vt. 233. Bank of Burlington v. Beach, 1 Aik. 62. Baxter v. Buck, 10 Vt. 548.

¶3. We do not see, why this note was not the absolute property of McKnight. He was not the agent, or trustee, of the creditors, for the purpose of taking the note. So far from that, the officer had no right, except at his own peril, to take any such note. It is not impossible, that, in case of the utter insolvency of the sheriff, and the creditors having no other remedy, they might, in a court of equity, reach this note; but even this is questionable. They certainly could not control the note, short of showing a case of insolvency and fraud, — neither of which appear in the present case.

¶4That being the case, McKnight might divest himself of all interest in the note, by an absolute gift to the plaintiff, if he saw fit.

¶5Judgment affirmed.

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