13 Vt. 118 | Vt. | 1841
The opinion of the court was delivered by
This case comes before us on two exceptions. The first is to the decision of the court overruling the defendant’s-motion to dismiss. The court decided that the motion was out of time, according to the rules of the court. This decision of the court, on the construction of
The other exception is founded on the decision of the court, that Thomas Clark, on his disclosure, was the’trustee of the defendant, Uzziel Clark. The statute makes all the goods, chattels, rights, or credits of the principal, debtor, in the hands of his trustee, liable for the debts of the debtor. Hence, if the trustee is indebted to the principal debtor, he is liable to be summoned as trustee, without regard to the nature of the indebtedness, whether by record, specialty, or simple contract. No exception is made whether a suit is depending in favor of the principal debtor, or whether payable or not, and we can make no exceptions, unless required so to do, to prevent injury to third persons, or, unless the spirit of the act requires it; or, unless we should find difficulties too great to be surmounted, by holding the trustee accountable. It surely should not depend on the fact whether the principal debtor, or his creditor, first commenced the suit against the trustee, to determine whether the trustee should be holden in the suit brought by the creditor. The security and safety of the trustee does not require this. The trustee must be in a situation that, if he is holden as trustee, at the suit of the creditor, he shall not be made liable to the principal debtor for the amount. Hence, if he has an opportunity to plead the pendency of the creditor’s suit against him, or payment of a judgment recovered thereon, he is in no danger. Where judgment is recovered by the creditor and collected of the trustee, the latter is, by the statute, acquitted and discharged from so much against all claims of the principal debtor.
If a suit is pending in the name of the principal debtor, against the trustee as defendant, and the latter is summoned as trustee, he may plead this as a temporary bar, and stay the proceedings until the suit of the creditor against him, as trustee, is determined, and this plea he may put in at any time while the cause between him and the principal debtor is open. In the case of Howell v. Freeman, 3 Mass. 121, the trustee was sued, a reference between him and the debt- or had been had, and the award made, though not accepted. He, therefore, had no opportunity of putting in a plea to protect himself, and was discharged. Had he had such
The judgment of county court is affirmed.