65 Vt. 234 | Vt. | 1893
It being evident that the question now made regarding the scope and effect of the replication was not raised in the court below, it will not be considered here.
The defendant is found to have had property within the State, which, in the exercise of reasonable diligence, would have become known to the plaintiff. It remains to be determined whether the property was such as to keep the statute in operation. The court has found that its value was $100, but that the plaintiff would have derived no substantial benefit from its attachment. If it be held that the test is the sufficiency of the property to afford the creditor a substantial benefit, and that the question of sufficiency is one of fact, the case is disposed of by the above finding.
In the consideration of cases involving this feature of the statute, different views have been expressed. In Hill v. Bellows, 15 Vt. 727, Williams, J., speaks of the obligation resting upon the defendant to prove that he had known property within the State from which the plaintiff “could have satisfied his demand.” In Royce v. Hurd, 24 Vt. 620, Redfield, J., treats this as a declaration that the property must be “sufficient to satisfy the whole debt”; and says that this seems to him to be the reasonable import of the statute. On the other hand, in Wheeler v. Brewer, 20 Vt. 113, Royce, Ch. J., after saying that the property must be more than ■enough to enable the plaintiff to get service and keep the demand alive, limits the requirement to property “capable of yielding a substantial benefit to the plaintiff.” In Russ v. Fay, 29 Vt. 381, Isham, J., in stating the rule, uses substantially the language last above quoted. Subsequently, in
We think it may be considered as settled that the test is whether the property would have yielded the creditor a substantial benefit by way of a reduction of his claim. This clearly involves matters of fact not covered by a valuation of the property. The question whether the property would have yielded the creditor a substantial benefit must depend somewhat upon the character of the proceedings required to establish his claim, the expense of procuring necessary legal assistance, the location and nature of the property, and the necessity of incurring expense to secure it when under attachment. A given amount of property might yield a substantial benefit in some cases and not in others. It is not necessary to consider what this court might be able to do upon a mere finding of valuation, if the sum found were such that no contingencies recognized by the law could possibly reduce it below what would be a substantial application upon the indebtedness. It is certain that we cannot, as matter of law, say that this property would have afforded a substantia] benefit to the plaintiff", against the county court’s express finding to the contrary.
Judgment affirmed.
