24 Vt. 75 | Vt. | 1852
The opinion of the court was delivered by
The questions in this case, arise on three bills of exceptions, which have been allowed during the progress of the trial of the case. The first is on a plea in abatement; the second on a motion to dismiss, and the third upon facts set forth in the seventh answer of the trustees, to the allegations of the plaintiffs, and the replication thereto.
The action is on book against Barnum, as principal debtor, and William Eggleston, Benajah Barker, H. V. B. Barker and Storm R. Haight, of the firm of Eggleston, Barker & Co., as trustees ; judgment having been rendered against the principal debtor, no question arises on that part of the case; neither does any question arise on the present investigation, as to any actual indebtedness between the trustees and the principal debtor. For if such indebtedness exist, it is insisted that the trustees are not chargeable in
The Compiled Statutes p. 256, gives to creditors the benefit of this process, by which the estate of the principal debtor, both real and personal, can be attached, as well as debts and claims due to him from others ; and this property, so attached, can be held by the creditor for the payment of such judgment as shall be obtained against the principal debtor. This statute is remedial in its character, and should be so liberally construed that full effect may be given to the intention of the Legislature in its passage. It should be borne in mind also, that this act was passed cotemporaneously with the act abolishing imprisonment for debt. Thus while relieving the person of debtors from arrest and imprisonment on matters arising ex contractu, the Legislature intended to extend the remedy of the creditor, by creating a lien, under this process, upon the real and personal estate of the debtor, as well as debts and claims due to him.
It is, therefore, a matter of justice as well as propriety, that such construction be given the act, that all the effects of such debtor be held for that purpose, unless expressly exempted by its provisions. It can in no way injuriously affect the trustees, for every matter of defense, or subject of consideration, is available under this prosecution, which would be available if the matter was prosecuted by their immediate creditor. All they are required to do, is to discharge to the creditor in this suit, that obligation, they are bound to perform to the principal debtor. Under this general view of the act, it becomes the duty of the court to protect whatever lien may have been obtained by the plaintiffs under this process, tinless it is in contravention of some positive rule of law.
It is to cases of that character, therefore, where all the parties reside in another State, that the application of that section of the act should be confined. It is obvious, therefore, that it can have no application to the case under consideration, where some of the trustees reside in this State, where the partnership was formed and had its j)lace of business ; and as it does not appear that the debt was contracted or payable abroad, it is to be inferred that it was contracted and payable here. Under such facts, the reasoning of Judge Sew all will have the effect to charge the trustees, for if
Under those circumstances, such effects are as liable to be reached by this process, as are the goods of any debtor deposited within the bounds of this State. There is nothing, therefore, in this provision of the statute that prevents the prosecution of this suit. And if any difficulty exists, it must be in the application of other principles, rendering its prosecution inconsistent with the general policy of the law, and attended with insecurity to the individuals summoned as trustees.
That there are difficulties of a general character, and some arising possibly from the want of more specific legislation applicable to cases of this kind, is not to be disputed, and which have been urged upon our consideration in the argument of the case. Among these it is said, that the statute can have no effect without the State ; that the absent members of the firm may be sued in that State, for the same matters, and that a judgment in this suit against the resident members in this State, will be no bar to proceedings in another State, where the absent members reside. It would be difficult to resist the force of this objection, if the situs or place of business of the company was in that State, and its affairs were conducted there, by resident members of the company. In such case, the effects of the firm might with more propriety be considered as subject to the laws and jurisdiction of the State where its business was transacted. But where, as in the case under consideration, the company was formed in this State, and its affairs conducted here by resident members, its effects are local, and remain with the members of the firm, at their place of business, subject to the laws of this State, and the jurisdiction of its courts, and their adjudications are conclusive upon other tribunals, more particularly where the prosecution partakes of the character of a proceeding in rem. The conclusiveness of an adjudication under such circumstances, in binding the effects of the firm, rests not merely upon principles of comity, but upon the higher principles
The difficulties arising from the fact that any agreement may have been entered into, and liabilities incurred by the absent members of the firm, and of which those resident in this State may be ignorant, and that the actual state of the claim in relation to which the suit was commenced, may not be known before judgment,— can be avoided in the exercise of the power of the court, in delaying the rendition of judgment for such time as will enable the trustees who are parties, not only to ascertain the true condition of the claim, but the nature and extent of such liabilities as may
It is further urged by the trustees, that this suit cannot be sustained, as the debt due from the trustees is joint, and that they are liable to be prosecuted in this form of action, only when all the debtors can be, and are, made parties to the suit; and that no provision is made in the statute by which proceedings can be had only where the whole firm is summoned in their partnership capacity. It was held in the cases of Rix v. Elliott, 1 N. H. Rep. 184, and Hudson v. Hunt, 6 N. H. Rep. 588, and 6 Mass. Rep. 60, that one joint debtor could not be held as trustee, without joining the others. And this is unquestionably correct, in all cases, as it was in those, where all the debtors lived within the State, and the process might have been served upon all. This is the rule at common law, in all cases where a joint claim is enforced by legal process.
The Compiled Statutes, p. 227, Sec. 60, 62, provides that on joint contracts, where one j>r more reside out of the State, an action may be sustained thereon, against those residing in this State, and that a -judgment in such suit, remaining unsatisfied, shall not discharge those who are resident abroad. All such actions may be commenced by attachment or summons; ‘p. 242, Sec. 1; and when commenced by summons, service of the process can be made under the provisions of the same act, p. 244, Sec. 16, by delivering to the resident debtors, or leaving at the house of their usual abode, an attested copy. Under these several provisions, Barnum, the principal debtor in this suit, could have commenced his action by summons, against the firm of Eggleston, Barker & Co., and caused service to be made on those members of the firm who were resident in this State, and proceeded to judgment and execution against the partnership effects. The trustee act in this respect, subrogates the plaintiffs in this suit, to the rights of Barnum, the principal debtor, against the firm of Eggleston, Barker & Co. This was the evident intention of the Legislature in giving to creditors the benefit of this process, and in giving the right, they
In the case of an individual or joint debtors, where all have their residence in another State, they cannot be summoned as trustees, not only on the ground that they are subject to another jurisdiction, but our statute has made no provisions for the service of process in such case; the 16th Sec. of the act,p. 244, applying only to eases where their residence is in this State. But provision is made in case of joint debtors, where some of them reside and are within the jurisdiction of this State and its courts. We think, therefore, that a suit of this character can be sustained against the members of a firm, part of whom reside in another State, where the company was organized in this State, and where its business is transacted here by resident members. -
In the application of these principles to the various exceptions which have been allowed in this case, our attention is to be directed in the first place, to the exceptions allowed on the pleas in abatement. These pleas were respectively filed by William Eggleston and Benajah Barker, two of the firm of Eggleston, Barker & Co. They have severally plead that at the time of the service of the writ, they were not residents of this State, but had their residence in the State of New York. Virtually, therefore, it is a plea to the jurisdiction of the court, and on which the suit, as to them, was abated. Independent of the question which the parties desired to present to the court in that form, a difficulty arises from the fact that the subject matter of the plea is not adapted to a plea on abatement. Its tendency is not to defeat the present proceeding merely, but to show that no action of this character can be sustained. In the case of Jones v. Winchester, 6 N. H. Rep. 498, a similar plea was filed by the trustee; and the court holding it a plea to the jurisdiction, use this language in their decision,—
The judgment of the court in sustaining this plea in abatement, must be reversed.
The 2d bill of exceptions is founded on a motion to dismiss the 7th answer to the plaintiffs’ allegations and the judgment of the court in overruling the same.
This answer was filed on the part of those trustees who were resident members of the firm in this State, and they insist that they cannot be held chargeable as trustees in this suit, inasmuch as other members of the firm resided out of the State, and had been discharged.
It is urged that this answer should have been dismissed because the facts were not plead in abatement, nor set forth in their disclosures. But for the reasons which have been stated, the matter was not a cause of abatement, and could not have been so plead, neither was it necessary that they should have set it forth in their •disclosures; for the legitimate object of a disclosure is to set forth the facts upon which the question of indebtedness arises. If there are other facts upon which the trustees claim to be discharged, they may make such allegations, independent of their disclosures, and upon which testimony may be taken by the parties, and the case submitted to the court andi jury. But the legal effect of facts so alledged, can never be tried on a motion to dismiss. For if such motions were entertained, it would be in the power of the party making such motion, to take every such case with its testimony from the consideration of the jury. The view entertained of this subject, in short, is this — that the defense, if available, goes to the whole merits of the suit, and should be presented either upon the disclosure or such allegations and pleadings as go to the action, and upon which issues can be properly formed, testimony taken, and trial had by the court or jury. The motion to dismiss was therefore properly overruled, as the defense which the trustees desire to make, does not constitute a proper foundation for such a motion.
The result, therefore, is that the judgment of the court discharging the trustees, must be reversed, and that they must answer by making disclosure.