40 Vt. 237 | Vt. | 1867
The opinion of the court was delivered by
The point put by counsel for the trustee, as the only question that can be of any moment, seems to us to be well stated by him, viz: “ Was the ninety-five dollars in the hands of the trustee depending on a contingency, within the meaning of the Gth section of chapter 34 of the General Statutes?” If it was, then this process cannot be maintained against him. If it was not, then it is virtually conceded that the judgment of the county court is right. The first division of said 6th section is in the nature of a provisional exception to the 2d section, taking out from its operation what is embraced within its terms, and for which otherwise the trustee process might be used, viz : debts not absolutely due, and depending on a contingency at the time of the service of the process. This provision contemplates the relation of debtor and creditor, and not the fiduciary, relation created by a deposit, pledge or bailment. The statute uses the terms “ goods, effects or credits of the principal defendant.” The first two seem to contemplate and embrace property in the trustee’s hands which is owned by the debtor. The term credits seems to contemplate debts owing by the trustee to the debtor. It is this last subject-matter of the trustee process to which the first division of said Gth section applies. The relation of the trustee to the debtor in this case, by virtue of the money in the trustees hands, does not fall within that provision. The money, at the time of the service of the process, was the property of the debtor deposited in the trustee’s hands, It was effects of the debtor held by the trustee as security against a pending liability. The trustee was a bailee or depositary coupled with an interest, and, at all times, as such, was accountable to the owner of the money, or to those who might stand in his right. After the process had been served it was not in the power of the debtor and trustee to change the character of the relation by any understanding or agreement, so as to affect the right of any creditor that had attached to the effects of the debtor in the
We think th'e commissioner properly received and properly used the evidence that was objected to.
The judgment is affirmed, with costs, against the trustee in this court.