35 Vt. 430 | Vt. | 1862
The only questions in this case arise upon the report of the commissioner, as to the liability of the trustee, The commissioner reports the facts, and submits the questions of law to the court.
A question is made whether the written disclosure of the trustee filed in the ease is to be regarded as part of the case in connection with the report. Under the present statute the whole case, as to the liability of the trustee, is referred, and the disclosure previously filed is but evidence on the hearing before
It appears that the alleged trustee, Bacon, was a deputy sheriff, and had in his hands for service a writ of attachment in favor of Lee, the principal debtor, and served it by attaching $600 in bank bills, together with some other property ; that Lee immediately, and before the return day of the writ, settled the suit with the attorneys who commenced it, and that Bacon, being notified of the settlement, paid over • to Lee the bank bills attached except $50, which he retained when this trustee writ was served upon him, and which he still retains. The question is whether Bacon is chargeable as trustee of Lee for that $50.
I. It is insisted that as this money came into the hands of the trustee officially under an attachment, it is in the custody of the law, and not subject to attachment by trustee process, even after the first attachment is dissolved. Had this been personal property other than money, no one would doubt but it would have been liable to be attached by an ordinary writ of attachment. This being so, it is difficult to see why this fund may not be held by trustee process, which is but another mode of attaching the debtor’s property. By the settlement of that suit the lien of that creditor was gone, and the right of the debtor to the property became absolute, both as to title and possession.
It is settled in this state that a deputy sheriff who has money in his hands which he has collected on an execution may be held as the trustee of the execution creditor. This was decided in Hurlbut v. Hicks and Trustee, 17 Vt. 193; and in Bullard v. Hicks and Trustee, 17 Vt. 198. On the same principle such officer must be liable as trustee of the execution-debtor for a
II. It is also objected by the counsel for the trustee, that Lee’s remedy against Bacon for the money is founded on a trespass or tort, and that therefore Bacon can not be held as trustee. It is claimed to be a tort on the ground that bank bills are not attachable on a writ of attachment, and that for this reason Ba,con was guilty of a trespass when he attached the bills. The statute provides that goods, chattels and estate may be attached on a writ of attachment. Goods and chattels in a strict technical sense may not include money or bank bills ; yet in a statute, will, contract, or other'instrument, the words goods and chattels are construed to include money and bank bills, if such appears to be the intent. There are many instances where these words have been so construed. This question was discussed in Prentiss v. Bliss, 4 Vt. 513, where the Officer collected an execution in bills of the bank of Burlington, and in a suit in favor of the execution creditor for not paying over the money, the officer set up in defence that the bank bills were attached on a writ of attachment against the execution creditor in a suit still pending. This ease arose when we had no special provision in the statute on the subject, and yet it is evident from the language of the court, that, had it been necessary to decide the point, the court were prepared to hold that bank bills were attachable, and might be levied upon by execution. The court turned the case on the point that the identical bills collected by the officer on the execution did not become the property of the execution' creditor till paid to him by the officer, aDd therefore while thus in the hands of the officer they were not attachable as the property of such creditor. The statute now provides for levying an execution on current coin and bank bills. But it is claimed that, as the Statute js silent on the subject of such attachment on a writ,
But it is further insisted that Bacon was a trespasser, for the reason that in making the attachment he took the bills forcibly from the hands of the debtor or his wife, against their will. It is true that personal property usually carried or worn about the person, can not be attached when so worn about the person of the debtor that the officer can not attach it without committing an assault and violating the pei’sonal security of the debtor. But it appears that the officer was lawfully in Lee’s house, with process against him, for the purpose of making an attachment, and this was known to Lee; that this money, with a bag of specie, was in a bureau drawer, which was locked ; that Lee and his wife and the officer went to the drawer, and either Lee or his wife, at the request of the officer, unlocked the drawer; all three scrambled for the contents; Lee grasped the specie, ^pd his wife seized and held the roll o¡ bills, ‘whereupon the
III. But it is claimed that when Bacon paid over the bank bills to Lee all but the fifty dollars in question, it was agreed between Bacon and Lee that Bacon should have the fifty dollars as-a reward for finding the money, Lee having'previous to the attachment pretended to have lost the money, and advertised it as lost, offering a reward to any one who should find it. Bacon never found any money of Lee’s, otherwise than as already stated in stating the circumstances of the attachment. Lee having settled the attachment with the creditor, claimed the money attached, and Bacon refused to deliver it unless Lee would sign the paper attached to the report, and which is relied on as an agreement that; Bacon should retain the fifty dollars, for finding the money. At this time there Was another officer at the door about to attach, as the parties supposed, the money in Bacon’s hands, and in consequence of this and the fact that Bacon would not give up the money on any other terms, Lee signed the paper, and Bacon delivered over to him five hundred and fifty dollars, and retained the other fifty dollars. The plaintiff claims to charge the trustee on the ground that the fifty dollars was left in Bacon’s hands to keep it from attachment. The trustee Can not be made chargeable upon this ground. Lee’s purpose, undoubtedly, in hastening to get the money out of Bacon’s liands was to keep it from attachment, but there is no ground to infer that his intent in leaving the fifty dollars in Bacon’s hands was fraudulent in fact, or for the purpose of having Bacon hold it in trust, for him, to avoid creditors. The commissioner finds no
The principle and spirit of the decisions on the subject of voluntary and compulsory payments fully sustain this conclusion. Many of the cases were recently and critically examined in Beckwith v. Frisbie & Sons, 32 Vt. 559. In that case, however, the money was paid under protest, but it was a case between private individuals. The law is more strict against oppression by a public officer by means of an advantage obtained in his official capacity.
But it is daimed by the counsel of the trustee that the right to avoid this contract is personal in Lee, and that he only can avoid it. But the fact that Lee has agreed with the plaintiff1, in some" arrangement in reference to the plaintiff’s demand, that the plaintiff should have the benefit of this claim against the trustee, (as is conceded by counsel in explanation of a statement in the report on this subject,) is such an election on the part of Lee to avoid this contract, as obviates this objection, even if otherwise it would prevail.
None of the objections interposed by the trustee can avail him, and the. judgment of the county court is affirmed.