2 Vt. 277 | Vt. | 1828
delivered the opinion' of the Court. — Whether •or not Aaron Leland, who is summoned as the trustee of Asa Leland, ought to be charged as such in this action, must be decided upon the facts stated in his disclosure. The testimony contained in the deposition, which is said to have been used in the court below, and has been brought up here, cannot be noticed, since the appellate jurisdiction of this court, by the acts of 1824 and 1826, is confined exclusively to issues and questions of law, decided by the county court, either on the declaration and pleadings, or on the trial and hearing of a cause, and appearing from the record itself, or placed upon it by the agreement of the parties, or the allowance and order of the court. The disclosure in a trustee process, or the report of auditors, or referees in a cause, forms a part of the record ; but depositions or papers, filed in a casein the court below as evidence, are no part of the record, and cannot be regarded as such on a removal of the cause here. If either party wished to avail himself of the facts contained in the deposition which has been introduced, on a hearing of the case here, ■and had a right so to do, the facts should have been either incorporated into the disclosure, or stated in exceptions filed and allowed, or a case agreed upon by the parties.
The material facts appearing from the disclosure are, that Aaron Leland, the trustee, having become surety for Asa Leland, the principal debtor, to one Willson, on two promissory notes, for the sum of $600, Asa Leland executed to him, for his security, two notes for the same amount, and mortgagd to him a farm to secure the payment of them; that afterwards, in March, 1827, Asa Leland sold and conveyed the farm to one Armington, and Armington thereupon executed to the trustee his note for the sum of $703 25, being the amount then due upon the two notes given to Willson ; and the trustee at the same flime released and discharged his lien upon the farm, and agreed to deliver op to Armington the note signed by him, on his paying the two notes given to Willson, and delivering up the same to be can-celled.
Upon the facts thus stated, it is impossible to contend that the trustee on taking the note executed to him by Armington, became a debtor to Asa Leland for the amount. The note was executed to, and received by, the trustee, as a substitute for the security he relinquished, and was intended as an indemnity, in lieu of the mortgage, to secure him against his liability to Willson ; and by the express agreement of the parties, if Armington discharged that liability, it was to be a satisfaction of the note. If Armington did not do this, and the trustee was compelled to pay the debt due to
On other facts, and on other grounds, than those already men-Stioned, it appears from the ‘disclosure, that the trustee is indebted to the principal debtor in the sum of three dollars. But this is not sufficient to indemnify the trustee for his reasonable costs; and in such case the statute directs that no judgment shall be rendered against the trustee, but all proceedings against him shall be Stayed, and judgment shall be rendered in favour of the trustee for the residue of his costs, deducting the sum found in his hands, to be taxed against the plaintiff. As the judgment in the court below was in favor of the trustee, and entered up substantially according to the provision of the statute, it must be affirmed.
Judgment affirmed.