14 Vt. 211 | Vt. | 1842
The opinion of the court was delivered by
This trustee process was commenced since the Revised Statutes came into operation, but issued in the from prescribed by the previous statutes. The trustees are summoned to come into court, and answer the plaintiffs upon their declaration against the principal debtor, and the writ closes with a direction to the officer to leave a copy of the writ, with his return thereon, in the hands of the trustees for the principal debtor. This is entirely reversing and changing the form given under the existing law. By this the writ and declaration are to issue directly against the principal debtor, as against any other defendant to an action, and the writ is to close with a direction to summon the trustee. The command to the trustee is simply to come into court and make his disclosure ; and not, as before, to answer the plaintiff upon his declaration against the principal debtor. The proceeding is thus rendered more analogous to a common attachment of the debtor’s goods ; and, to carry out the analogy, the plaintiff is allowed, at any time before service is made upon the debtor, to add other trustees. Such' is the shape of this kind of process, as authorized in the adjoining states, and it was doubtless adopted here as being better fitted to our system as now established. But, if regarded as mere form, it is a form prescribed by statute, and the only one at present given. It should, therefore, he held imperative, so long, at least, as the objection has not been waived by other proceedings in the cause.
The manner of service as to the principal debtor, which was pursued in this instance, though authorized by the repealed act of A. D. 1831, has no direct sanction under the statute now in force ; and this, according to the reasoning of the present Chief Justice, in Huntington v. Bishop, 3 Vt. R. 515, would seem to constitute ah insuperable objection. We are not required, however, to pass decisively upon this point, as affected by the present statute, since the other is a sufficient ground for affirming the judgment below.
Judgment affirmed.
