22 Vt. 18 | Vt. | 1849
The opinion of the court was delivered by
Two questions are presented in this case, — J, Whether the liability of Smith to Trask was of such a character, as to render him a trustee, within the meaning of the statute, — and 2. Whether Trask was entitled to claim and hold the benefit of that liability against the plaintiff, his creditor, under the provisions of law exempting certain property to a limited amount from attachment and execution.
As between Trask and Smith, the latter was not liable simply as ,U debtor for the fifteen dollars received in payment for the stove, except at the-election of Trask. He was at liberty to sue in special assumpsit upon the contract, and go for all actual damages, including the consideration paid, or fq prqpged in general assumpsit for
There was also a trust and credit given to Smith for the execution of the agreement on his part; for it was not found by the county court, that the sale had been perfected by any delivery of the stove, but Smith had contracted to sell it to Trask, together with the house in which it was, and to give possession by a day appointed. And in the meantime Trask had paid the consideration. There is not enough stated in the case to warrant us in assuming, that the money could only have been obtained from Trask through actual fraud and imposition practised by Smith. The case is, therefore, within none of those rules excluding a resort to this kind of process, which are recognized in Barker v. Esty & Tr., 19 Vt.
The second question is easily disposed of. The statutory exemptions of property in favor of debtors are uniformly limited to specific chattels, and do not extend to debts or pecuniary claims due to the debtor, (if sufficient in amount to be attachable by trustee process,) with the single exception, so far as I recollect, of debts or claims due for pension money. Now it is, indeed, settled by the cases cited, that had Trask, the claimant, acquired a title to the cook stove by his purchase, it would not have been attachable in his own possession, or in that of Smith, since it appears, that he had no other. But he in fact acquired only a cause of action against Smith; and that, as we have already considered, was of a character to be liable to this form of attachment.
Judgment of county court affirmed,