9 Vt. 295 | Vt. | 1837
The opinion of the court was delivered by
It appears that Hawley executed' a note to the Greenoughs, which is unpaid. That, before the commencement of this suit, Peck bad purchased the note of the Greenoughs, paid them the value thereof, and notified Hawley of the purchase. The plaintiff endeavors, in this suit, to holdHawley as trustee of the Greenoughs, on the ground that the purchase,- by Peck, of the note,, was fraudulent and done with.ah intent to enable the Greenoughs to defraud their creditors. If it is practicable to effect, this object in this action,, it will follow, that questions in relation to a fraudulent conveyance may be decided by the court, without the intervention of a jury. Nothing is disclosed shewing that Peck is in any way indebted to theGreenoughs. He has paid the value of the note, aud the only object of making him a party is to obtain from him a disclosure,, which may be evidence of a-fraudulent transaction-between-him and the Greenoughs,. and in order that the decision in this case may be conclusive upon his right hereafter to collect the note of Hawley. In Massachusetts it- has been considered that this course may be taken. The impropriety, however, of thus passing upon the right of the assignee, without the intervention of a jury, led the court in that State to suggest that a legislative provision for a trial, by jury,, of the question,.whether trustee or not, would be highly expedient. The greater impropriety, however, of compelling a trustee to be examined on oath, in relation to fraud’ in- a conveyance, or assignment, to which he was a party, when, by his answer to the interrogatories, he might subject himself to the penalty,, provided in the statute against fraudulent conveyances,, would lead us to hesitate, before we should say that any such proceedings ought to be sanctioned.