Hurlburt v. Hicks

17 Vt. 193 | Vt. | 1845

The opinion of the court was delivered by

Williams, Ch. J.

In this case the trustees were adjudged chargeable on their disclosures. It appears that Woodruff had, as deputy sheriff, collected on execution in favor of Hicks, one of the defendants in this action, an amount, for which the county court adjudged him trustee of Hicks. The execution, on which he collected the money, bore date September 27, 1843, and was returnable in sixty days; he collected the money within the life of the execution ; and the writ in the present case was served on him, as trustee, on the 29th day of November, 1843.

The principal debtor excepts to the decision of the county court; and it is objected, that, inasmuch as Woodruff, the trustee, did not except to the decision of the court below, the judgment should be affirmed. It appears to us, however, that the principal debtor, whose interest is affected by the proceeding, and who has been interfered with in the collection of his executions in the hands of the deputy sheriff, may save any question arising on the disclosure of the trustee, and show any good cause why his debts and contracts should not be interfered with.

On the question raised on the disclosure of Woodruff we have no doubt the decision of the county court was correct. It is sufficient, if the trustee has any credits of the principal debtor in his hands, or is indebted to him absolutely, and not depending on any contingency. A sheriff, having collected money on an execution, is so indebted to the creditor, for which the creditor may maintain an action against him for money had and received. It was so decided in the case of Dale v. Birch et al, sheriffs of London, 3 Campb. 346, and in the case of Longdill v. Jones, 1 Stark. R. 345, and that such action could be maintained against the sheriff, even without a previous demand.

These decisions are directly opposed to the case of Wilder v. Bailey & Tr., 3 Mass. 289. The latter case, it is true, is supported by very ingenious reasoning; but we apprehend, that, under the statute of this State, which subjects every person to this process having any goods, effects, or credits of the principal debtor intrusted, or deposited, in his hands, or possession, the case in Massachusetts cannot be received as an authority to control the construction of the statute. The preamble of the statute in Massachusetts was much relied on in the opinion of the court; no such preamble exists in our statute, but all the credits of the debtor are subject to be taken on this process.

It is not material for us to consider whether an action for money had and received could be maintained against the officer by the creditor in the execution, without a previous demand, as was decided in the case of Dale v. Birch el al, 3 Campb. 346. It is sufficient to say that the officer has credits of the principal debtor in his hands, which may be arrested, or stayed, by the trustee process; and that he has such credits we have no doubt.

It is worthy of observation, that, when the committee of revision reported to the legislature the statute in relation to the trustee process, they, in the 29th section, incorporated a provision, “ that no. * person should be adjudged a trustee by reason of any money, or ‘ other thing, received or collected by him as a sheriff, or other * officer, by force of an execution, or other legal process, in favor of ‘ the principal defendant in the trustee process, although the same ‘ should have been previously demanded of him by the principal de- ‘ fendant, or by reason of any money in his hands as a public officer, ‘ and for which he is accountable merely as such officer to the ‘ principal defendant,” — both of which provisions were stricken out before the present act was passed, — the legislature not considering it expedient to engraft such an exception upon the statute.

The judgment of the county court is therefore affirmed.