35 Vt. 116 | Vt. | 1862
The questions in this case arise on exceptions taken by the trustee to the judgment of the county court,
It appears from the commissioner’s report .that the trustee, prior to the April Term of the Franklin county court in 1860, became the receiptor of property attached in two suits against the principal defendants, which were returnable to and entered in the county court at that term, and on which final judgments were subsequently rendered against the principal defendants. About the time when the trustee signed the receipts referred to, 'the principal defendants drew off a list of accounts due to them •on their ledger, and of some notes also due.to them, upon a little book, and annexed to this list of accounts and notes an agreement in writing, by them signed, in which it was expressed, inter alia, that these accounts and-notes were thereby “turned •out” to the trustee “.to secure him for such liabilities as he has assumed or may hereafter assume for us,” and that the trustee" should be allowed to collect the same, so far as it might be necessary for his proper indemnification against such liabilities. This little book was then delivered by the principal defendants to the trustee. On the 25th April, 1860, the . trustee purchased •of the principal defendants the entire stock of goods in their store, with the store furniture, for the sum of two thousand •dollars, and executed to them four promissory notes, each for the sum of five hundred dollars, payable severally in three, six, nine, and twelve months from that date with interest; and there 'was, at the same time, a verbal agreement between him and them that these four note? should be a security in his; hands for all indebtedness then existing in his favor against them, and for all liabilities which he had contracted for them, and for all payments which he might make for them. The writ in this suit was served on the trustee on the 18th .June, 1860. After the execution of the four notes, and prior 'tó the service of the writ on the trustee, he became liable on account of the principal defendants by signing notes as surety for them to a considerable amount, and he also advanced money to them. On the 30th June, 1860, he signed another note as surety for them, and took from them a receipt for all of the notes so signed by him as surety for them as aforesaid, which, after reciting his liabilities
He had also paid out a large sum of money upon liabilities incurred by him for the principal debtors after the service of the trustee process, the amount of which is not material. He had collected up to the time of the disclosure upon the notes and accounts drawn off in the little book above mentioned, the sum of 673.95
1484.01
The notes given by the trustee for the store of goods amounted at the time of the disclosure to 2,147.32
The commissioner decided that the collections made by the trustee upon the notes and accounts assigned him, amounting to $673.95, should be applied solely upon the payments made by him upon liabilities assumed prior to the service of the trustee process ; and he deducted the balance from the amount due on the trustee’s notes, - leaving a remainder of 663.3Í
For which he decided the trustee was chargeable.
The county court accepted the commissioner’s report, and adjudged the trustee chargeable for the amount of the plaintiffs’ damages and costs, being less than the amount for which the commissioner reported the trustee was chargeable. To this decision the trustee excepted.
The plaintiffs, by the service of their writ in this suit on the trustee, on the 18th June, 1860, attached the goods, effects, or credits of the principal defendants intrusted or deposited in his hands or possession at that time, or which might thereafter come into his hands or possession before the^making of his disclosure ; and, by such attachment, such goods, effects, and credits were held to respond the final judgment in the suit. (Comp. Stat., p. 256, §2.) The object of the remedy by trustee process is to enable the creditor to enforce against the trustee, in respect to the goods, effects, or credits thereby attached, all the rights
No injustice is done to the trustee in respect to his security by this application, because he incurred his additional liabilities for the principal defendants with a full knowledge of the plaintiffs’ attachment and lien. The general principles of equity law in respect to the marshalling of securities (1 Story Eq. Jurisp., by Redfield, §§ 633, 645,) may well be applied in this case to the extent of the money collected by the trustee. For his liabilities for the principal defendants assumed prior to the commencement of this suit, he had a lien on, or interest in, two means of indemnity, viz.: on his own notes which he had executed to them, and on the money collected on demands belonging to them, which, by their agreement, were “turned out” to him for the express purpose of securing these liabilities. The plain* tiffs by their attachment acquired an interest in or lien upon only one of these funds.
We are satisfied that the commissioner made the appropriate application of the money collected and received by the trustee on the demands belonging to the principal defendants in his hands, and that the trustee was properly held chargeable for the amount of his notes to the principal defendants, deducting
The judgment of the county conrt, by which the trustee was held chargeable upon the commissioner’s report, is consequently affirmed with costs. The judgment against the principal defendants, not being excepted to, is affirmed without costs.