30 Vt. 268 | Vt. | 1858
The opinion of the court was delivered by
The decision of the county court sustaining the demurrer to the defendant’s plea in bar, was clearly right.
It was decided by this court, as early as the case of Morton v. Webb, 7 Vt. 123, that the pendency of a trustee suit would not abate a subsequent suit between the principal parties for the same cause of action, and upon the ground that the trustee suit does not furnish the same x’emedy.
In Hicks v. Gleason, 20 Vt. 139, it was held that the rights of the principal debtor in a trustee process, for every purpose of making demand of his debtor, who is summoned as trustee, or of securing his claim against the trustee by attachment, or otherwise, remain unimpaired by the pendency of the trustee proceedings, but in subordination to the trustee pi-ocess. In that case the trustee was a sheriff’s deputy, and had collected a sum of money on
In the case of Spicer v. Spicer, 23 Vt. 678, the court went still further. In that case the defendant had been adjudged trustee for the full amount of the plaintiff’s claim against him, in a trustee suit in favor of a creditor of the plaintiff, but had not actually paid that judgment, and the plaintiff was also held entitled to judgment against the defendant for the amount of his claim, but the court ordered the execution to be stayed, until the plaintiff should cause the defendant to be released from the trustee suit.
This last case, it is apparent, goes much farther than the present. Here there has been no judgment against the defendant in the suit against him as trustee; the suit is only pending against him.
It will be seen upon slight reflection, that to hold that the mere pendency of a trustee suit could be made to abate a subsequent suit by the principal debtor, and, much more, to hold that it could be pleaded in bar, would often work the greatest injustice.
The debt of the plaintiff in the trustee suits might be very small, or it might be a disputed claim, which the principal debtor desired to litigate; the debt due from the trustee might be very large ; there might be great danger of its being lost by insolvency or removal from the country; the trustee suit might be collusive, and if such effect were given to it, there would doubtless be many of that character; and many other mischiefs might properly be apprehended, if such a doctrine should obtain. It seems absolutely necessary, therefore, to hold that the principal debtor may sue, notwithstanding the pendency of the trustee suit, but the courts will be careful to see that the trustee is not subjected to any danger of being compelled to pay his debt twice.
The bill of goods for which the defendant claimed to be allowed before the auditor was properly disallowed.
The plaintiffs brought a suit against the defendant, and these goods were attached by the officer, but the suit was abandoned, and upon a settlement soon after, between the plaintiffs and the defendant, it was found that the plaintiffs were indebted to the defendant. It appears, however, that the dealings between the parties, were large, and nothing is shown upon the report, but that the suit was brought in good faith, with an honest belief that the defendant was indebted to the plaintiffs, and that they were entitled to recover a judgment against him.
The plaintiffs were not entitled to have, and did not have the custody or possession of the goods attached; they were in the custody of the law, and when the suit was ended, it was the duty of the officer to restore them to the defendant. The plaintiffs would not be responsible to the defendant for the non-delivery of the goods by the officer, unless they were some way in fault for his not doing so. It appears that the parties looked over and adjusted their accounts, January 1, 1848, and that the plaintiffs then informed the defendant that their suit was abandoned, and told the defendant that they had directed the officer to deliver the goods attached to him. The defendant appears to have acquiesced in this arrangement, and it seems that the settlement between the parties was amicable, and the parties continued their dealings as before. The defendant did not call upon the officer for the goods until March afterwards, and the officer then gave as an excuse to the defendant for not delivering the goods, that he had received no directions from the plaintiffs to do so. The auditor reports, however, that the goods had in fact been lost or destroyed before that time, but that it did not appear how, or whether it was by the fault of the officer or not. We think upon this report of the facts, enough is not shown to enable us to say that the defendant had any legal claim against the plaintiffs, growing out of this attachment of these goods, either for bringing a groundless and malicious suit, or
But whether the defendant could have sustained any legal claim against the plaintiffs or not, it is clear that his claim, if he had one, was a claim not founded on or growing out of any contract between the parties, and that if any action could have been sustained, it must have been one sounding in tort, and that he could not charge the goods in account to the plaintiffs. Nor was the general statement of one of the plaintiffs to the defendant afterwards, that they would do what was right in that respect, sufficient to change an existing claim'in tort into a legal item of book charge, and much less to create a legal right where none existed before. The judgment of the county court is affirmed. But the execution is ordered to be stayed, until the plaintiffs shall procure the defendant to be released from said trustee suit.