Owen v. Gray

19 Vt. 543 | Vt. | 1847

The opinion of the court was delivered by

Kellogg, J.

It is now objected by the trustee, to the judgment of the court below, that the articles of property in his hands, belonging to the principal debtor, are not subject to attachment» and consequently not liable to the trustee process.

This objection is founded upon the 13th section of chapter 42 of the Revised Statutes, which exempts from attachment and execution “ Such military arms and accoutrements as the debtor is required by law to furnishand the cases of Parks et al. v. Hadley & Tr., 9 Vt. 320, and Adams v. Newell & Tr., 8 Vt. 190, are cited as authorities, to show that the property disclosed by the trustee in the present suit is not liable to the trustee process. Those cases are clearly distinguishable from the case at bar. The case of Parks et al. v. Hadley & Tr. establishes the general proposition, that personal property, exempted from the levy of execution, is not to be held in the hands of a trustee. The property sought to be charged by the trustee process consisted of household furniture. The case of Adams v. Newell & Tr. decides, that the money of a pensioner, in the hands of his agents, is not liable to the trustee process. These are cases of permanent exemptions of property from attachment, and apply to all persons, who may hold the same.

But in the case of military arms and accoutrements the law limits the exemption to such, as the “ debtor is by law required to furnish.” This, we apprehend, is an exemption of a temporary character, as applied to the individual, to continue so long as the debtor is bound by law to furnish them, and that, when the obligation ceases, the exemption in the particular case ceases. Such we believe to be the obvious meaning of the statute.

The question then arises, was the debtor, Gray, at the time Wheeler was adjudged his trustee, bound by law to furnish these articles ? At that time Gray had absconded and left the state. His authority as an officer had ceased. The office of adjutant of the regiment was vacated by his removal from the state; and Gray, having ceased to be an officer, ceased to be under obligation to furnish these military arms and accoutrements, and consequently the statute exemption as to him ceased. The articles were therefore liable to the trustee process.

It is farther urged, that the plaintiff’s cause of action was merged in a prior judgment, and that consequently the present suit should be barred. It is not necessary to enquire what would be the effect of such a fact, if it existed and were properly pleaded to the action, or whether the trustee could avail himself of such a defence, inasmuch as we are unable to discover any evidence in the case of the existence of such fact.

The judgment of the county court is affirmed.