17 Vt. 226 | Vt. | 1845
The opinion of the court was delivered by
The only question in this case arises upon the ■disclosure of Samuel S. Wright. It is argued, that, upon general principles, a minor can in no case be charged as trustee by means of the trustee process. It would seem, if there is an attempt to charge him upon the ground of having in his hands the credits of the principal debtor, that the plea of infancy should avail the trustee, equally as if sued directly by the principal debtor ; but if the minor is liable to the principal debtor for necessaries, no good reason is perceived why he may not be charged as his trustee, to the extent of such liability, by means of the trustee process.
So, if he has the specific goods and chattels of the principal debtor in his hands, we see no sufficient reason, why they should not be reached by the trustee process. The statute provides that every person, who has the goods, effects and credits of the principal debtor intrusted to, or deposited in, his hands, may be summoned as trustee, and' the goods, effects and credits be attached, and held to respond the judgment, that shall be recovered against the principal debtor. The general words of the statute include minors, though it is true the court might, upon sufficient reasons, re
But we do not apprehend that there is any good reason fo/ restraining these general words. The attaching creditor takes the place of the owner of the property attached in the hands of the trustee. No new liability is imposed upon the trustee, and he has only to deliver the property to the officer, who shall have the execution, instead of delivering it to the principal debtor. If he refuses, he is liable to the attaching creditor, to the value of the goods. The minor would be liable, to the extent of the value of the goods, to the owner of them, provided there had been no attachment. In such'case the minor stands in the nature of a trustee, and holds the goods as such, and should, upon common principles, be held liable.
But a minor, when sued, is not capable of conducting the suit ; and it is as necessary that he should defend by guardian in a trustee process, so long as he is a minor, as in other cases. To give the trustee process the effect of an attachment of the goods, against the minor, from the date of the service, his guardian, if he had one, should have been cited in. If this is not done, the plaintiff must, at his peril, apply to the court to have a guardian ad litem appointed. But in the present case, as the trustee became of age before the disclosure was made, there was, at that time, no occasion for the appointment of a guardian. The property, however, had, before this, and while the trustee was a minor, been given up to the principal debtor, in pursuance of the original contract.
Had the trustee, in this case, been of age, and had elected, after vthe service of the trustee process, to rescind the contract and demand his note, it would seem as if he would thereby be excused from delivering the property to the principal debtor, but should, from that time, treat it as in the custody of the law. But as, in this case, the property was given up by the trustee, while under age, though after the service of the process, and while he was incapable of conducting his defence, and, in contemplation of law, not understanding his rights, or liabilities, we cannot consider the attachment, at that time, of such binding force against him as to render him liable at all events as trustee in this action.
The'judgment against the principal debtor is, proforma, affirmed without costs.
