42 Vt. 113 | Vt. | 1869
The plea is bad. First, as it is not alleged that the writ was served on the trustee or that he accepted service. Unless served in some mode, he is not a party trustee to the suit, although named as such in the process. Pike v. Blake, 8 Vt., 400. Second, because the plea prays judgment of the process as against all parties. If the suit could not be maintained against the trustee, no reason is alleged why it could not against the principal defendant. The theory of the proceeding is that it could, and this is often the result in a trustee suit. But the demui’rer to the plea raises a question of substance aside from any technical defect in the plea. The question is new, but when considered with reference to the nature and object of the proceeding, it is not strange or singular. As embodied and expressed in the statute, in all its essential features and purposes, it is similar and was obviously derived from the English garnishee process, which had its origin in local custom and was confirmed by act of parliament. In England the proceeding is judicial; by which a creditor could obtain security for his debt upon the goods and property of his debtor in the possession of another, for the purpose, in the first instance, of compelling an appearance of the debtor to answer to the action, and afterwards, upon his continued default, of obtaining the goods and property absolutely in satisfaction of the demand. Magrath v. Hardy, 33 E. C. L., 974 ; Drake on Attachment, § 543. Referring to the legislation of this state upon the subject, and the language of the statute providing the remedy, it is evident that it was intended to so enlarge its operation as to embrace every person (with certain exceptions which are immaterial to the present question) having in his hands or possession goods, chattels, effects or credits belonging to the principal defendant. in the action, and as recognized in England. This is not only the language but the spirit of the statute, which should be expounded liberally in favor of creditors ; (Edson v. Trask & tr., 22 Vt., 18 ;) and in that view, it is immaterial whether the goods, chattels, effects or credits subject to attachment in this mode are in the hands of a co-plaintiff, or whether it is a credit or debt due as distinguished from specific personal property. If
The judgment of the county court is affirmed.