Hayward v. Clark

50 Vt. 612 | Vt. | 1878

The opinion of the court was delivered by

Barrett, J.

This suit was commenced November ll, 1875. Qp the 2d of February, 1876, another suit was commenced in the name of the plaintiffs against the defendant and this trustee, and was prosecuted to judgment in due course, which judgment has not been satisfied, but it is to be regarded as having the same force as when rendered. The account of. $17.42, on which this suit was brought, was for groceries furnished in 1872. The judgment in the other suit for $8.02 was part of, and included in, said sum of $17.42. It is said in the report that the other suit was brought by Thrall, claiming to have been employed by plaintiffs to collect a bill of $8.02. We have no further information as to the cause of action or the course of events resulting in that judgment for $8.02, or as to the relation that the cause of action in the other suit sustained to the cause of action in this suit.

It appears that the account for $17.42 had all accrued, however made up, and of whatever items consisting, in 1872, three years at least before this suit was brought. It was ripe for suit and recovery in full when sued. The same was true when the second suit was brought. No impediment existed to the right of recovery or the making of security by attachment in this suit, as giving right or occasion for the bringing of the second suit. For aught that appears, the second suit was ample for recovering all that was due when the first suit was brought. It is not shown that the whole account was not presented, and litigated, and adjudicated in the second suit; and if not in fact so done, nothing is shown as occasion or reason for it not having been done. What is said in the report as to' Thrall’s having been employed to collect a bill of $8.02, cannot be regarded as saying that that was the whole amount of the account as placed' in his hands, but rather as stating the amount due on the account sued by him.

Taking the facts shown by the report the same as if shown under proper technical pleadings, we have no hesitation in holding that the judgment in the second suit is a bar to a recovery in this suit. 2 Vt. 114 ; 46 Vt. 45.

It will hence be seen, that we have not regarded what is reported about the plaintiffs repudiating the employment of Thrall by them as their attorney, for two reasons : one, — that the fact of such employment, though faintly found by the referee, yet is sufficiently found to answer the requirement as to preponderance in civil cases, viz., that “ the weight of evidence apparently tends to prove a probability of his employment as attorney to collect this partibular bill.” By “ weight of evidence,” as expressed in the report, we understand what it weighs, one way or the other, after being counterpoised by what hangs on the other end qf the beam. The language of the referee is about equivalent to a favorite form of expression in charges to the jury by Judge Collamer, viz.: “ In view of all the evidence, as you are most inclined to think the fact to be, so should be your verdict.” But passing this, the other reason is, that Mr. Thrall was a known attorney at law, with official authority to practice as such in all the courts of the State. He, in form and in fact, assumed to represent the plaintiffs as their attorney in bringing and prosecuting the second suit, and getting judgment therein. While that judgment stands and not vacated, it is effectual to every legal intent, the same as if the plaintiffs had appeared personally, and acted personally, in the obtaining of it, without the intervention of an attorney, or with the intervention of an attorney actually employed. The legitimacy, and operation, and effect of the judgment cannot be questioned in this case by any showing that Thrall acted without authority and wrongfully as against the plaintiffs. Abbott v. Dutton, 44 Vt. 546, and cases cited by Judge Ross.

We think the judgment against the trustee not to be warranted. While the check or draft from the pension office was the form of the defendant’s claim, while that constituted the matter of credit in the sense of the trustee law of this State, it, or the value represented by it, could not be reached by any creditor, by any process or proceeding. Whatever disposition he might make of it, therefore, could not be in fraud of any creditor, either presently or in prospect. The defendant gave the draft to his wife. The legal title passed to her by the gift. This is so in the light of many decisions in this and many other States. See Child v. Pearl, 43 Vt. 224, and Curtis v. Hapgood, stated in that case ; also Richardson v. Merrill, 32 Vt. 27, as specimens.

The trustee in this case could be chargeable in any event only by reason of the note given to the wife. He could not be held by reason of having in his hands the check or draft, even it it had been passed to him by the defendant. He could be charged only by showing that he had received the money on it, and was holding it as the debtor or bailee of the defendant. It does not appear that he has received the money on it. For aught that is shown, he may be holding the draft still. The only ground then, so far as shown, on which he could be charged as for a debt due from him on the score of that draft, is the note given to the wife. That, upon the facts shown, does not make him liable as on a note payable and delivered to the husband.

But if the case required, in order to protect the pension from the process in this case, we should feel it our duty to hold that under the United States statute, so long as the pension money is kept as a fund, or invested for keeping and use as current circumstances may require, it would not be subject to attachment by trustee process or otherwise, in suits against the pensioner. Nor are we at present prepared to say that property, needful for proper purposes of current life of the pensioner and his family, purchased with the pension money, could be so subjected. Having reference to the obvious intent of the United States statute, title 57, s. 4747, we should be disposed to give the closing clause of the section, “ but shall inure wholly to the benefit of such pensioner,” such force and application as would effectuate the benefit therein meant.

Judgment reversed. Judgment for defendant, and that trustee be discharged with costs.