Page v. Baldwin

| Vt. | Mar 15, 1857

The opinion of the court was delivered by

Isham, J.

The recognizance, on which this action is brought, was taken in the prosecution of a suit in favor of J. & J. H. Peck & Co. against John Merrill as principal debtor and these plaintiffs as trustees. In that recognizance the defendant acknowledged himself indebted and bound into each of the plaintiffs in the sum of one hundred dollars, subject to the condition specified in the statute. The plaintiffs, having been discharged as trustees, are entitled to their costs, and to their remedy on this recognizance for the payment of them. It is quite obvious, however, that this joint action cannot be sustained. It is not a recognizance in the sum of four hundred dollars acknowledged to the plaintiffs jointly, as stated in the declaration, but for the sum of one hundred dollars to each of the plaintiffs. Its legal effect is the same as if the recognizance for that sum had been taken separately to each of the plaintiffs by name. In such case it will hardly be contended that a joint action could be sustained for the aggregate amount for which they were separately given. If this recognizance can be considered as having been given for the sum of four hundred dollars, then it is a recognizance for that amount to each of the plaintiffs, for whatever may be the amount, the acknowledgment of indebtedness was to each of them.

The recognizance is not only several in its terms, but it stands as a security for separate interests. It is not averred in the declaration that the plaintiffs were summoned as trustees, in which they were charged as partners, or as being jointly iñdebted to the principal debtor. We cannot regard it as a fact in the case, therefore, that they Were summoned in that capacity. The legal interest in that recognizance depends not on the form in which the judgment is entered up for the trustees, but upon the statute authorizing the recognizance to be taken, and the matters intended to be secured by it. In a trustee process, the statute, p. 264, sec. 65, provides that the plaintiff shall give security to the trustee by way of recognizance, in the same manner as in other cases; and by the 2d and 13th sections, it is provided' that the plaintiffs, before service on the principal debtor, may insert the names of every person as trustee having in his hands any effects or credits belonging to the principal defendant. It is immaterial whether that indebtedness arises from simple contract, or under seal, or of record; they may all be joined as trustess in the same process. Some of the trustees may be liable, others not. Each trustee in his defense may present distinct and different issues, and each issue be dependent on other and different testimony, and the taxable costs due to each may and will generally vary in amount. It is upon these grounds that the proceedings are regarded as a distinct and separate matter against each trustee, as much so as if separate suits had been commenced upon their individual indebtedness. For that reason, alSo, in case the trustees are discharged, or any number of them, separate judgments should be rendered and the costs allowed to each as they have been respectively sustained, and upon that judgment each trustee is entitled to his execution. These principles grow out of the various provisions of the act in relation to the liability of trustees, and for that reason the recognizance should be taken to each trustee, that it may stand as security for the separate judgment for costs, which each may recover.

In this case it appears from the declaration that a joint judgment' was rendered in favor of the plaintiffs for their costs ; but that is an obvious misprison of the clerk. The proper judgment of the court is, that the trustees he discharged, and upon that judgment each trustee is entitled to his separate taxation of cost. The recognizance was, therefore, properly taken to each trustee, as security for his separate costs, and no joint action can be sustained on the recognizance. The records of that court should be corrected so that each trustee may have his separate judgment for costs. In that event, the remedy upon this recognizance is not attended with any difficulty. We have no occasion to examine the authorities as to the proper parties in actions on covenants, as this whole matter is determined by the construction of the statutes in relation to the trustee process.

The declaration is adjudged insufficient, and the judgment of the county court is affirmed.