Baxter and Edmunds vs. Vincent, Trustee of Marcy and Morrison, 6 Vt. 614

The opinion of the court was delivered by Royce, J. — Wherever the proceeding by foreign attachment, or, as we style it, the factorising or trustee process, is known to prevail, it has its origin either in local custom or statutory provision. In this state it does no): exist except by force of certain statutes, and the present question must therefore depend upon their construction. The act of October 31, A. D. 1797, which is the first and principal statute on the subject now in force, is not explicit as to the residence of the trustee.

It only enacts, — " That if “ any person or persons shall have in his, her or their posses- “ s*on> any money, goods, chattels, rights or credits, of any per-* “ son who shall have secretly absconded from this state, or who “ shall keep concealed within the same, any creditor may cause “ su°k Pers°n or persons, having such money, goods, chattels, “ rights or credits, to be summoned, as trustee or trustees of f? such absconding or concealed debtor,” &c.

The’act goes on to provide, that upon default of appearance by the trustee, the charge of his having effects of the principal debtor in his hands shall be taken and adjudged to be true ; as likewise, when the fact shall be made to appear by a disclosure of the trustee, or other proof, in explanation and support of the dis-? closure, or, as the act has been construed, in opposition to it. And the éreditor, having obtained judgment against the principal debtor, may take execution against such effects in the hands of the trustee.

If the' officer holding the execution shall return the same unsatisfied, with a certificate or return of the trustee’s neglect or refusal to expose such effects of the principal debtor, the creditor may have a rule upon the trustee, to show cause why execution on the judgment should not issue against him personally. The act of November 6th, A.

D. 1817, extends the provisions of the former statute to the case, where’ “ any inhabitant of this state shall hereafter remove out of this “state, and shall leave any money, goods, chattels, rights, or “ credits to him belonging, with any inhabitant of this state.” And by the statute of November 10th, A.

D. 1830, the provisions of the first act are further extended to the case, where “ any person, residing without this state, shall have any mon- “ ey, goods, chattels, rights or credits to him belonging, with “ any person or persons in this state.” — In both these cases the person having such effects is liable to be summoned as trustee. And under the last statute, the principal debtor is to be described in the process as an “absent debtor.” Jt should be borne in mind, that the proceeding against the trustee is not an original or’ distinct action.

The direct suit is between the creditor and principal debtor, and this is but a species of attachment, incidental to that suit, and dependent upon it. And hence the general rule, that any person coming into this state is allowed to institute, or may be holden to defend, a transitory personal action, is not conclusive of the question submitted. The object of these statutes is to furnish a remedy against the funds and effects ■of the debtor, when, in consequence of his having concealed himself or .being beyond the reach of ordinary process, the usual remedies cannot be enforced against him personally.

And the course pointed out, to bind the effects for the benefit of the creditor, has been considered as somewhat analogous to prbceedings in rem,, while in the mode of trial it has been likened to a hearing in chancery. A judgment in relation to the effects, whether it be for or against the trustee, is not understood to have the effect of an adjudication as between him and the principal debtor.

If the trustee is made liable as such, he is protected against the principal debtor, only to the amount for which he is so charged in favor of the creditor: — in other words, a payment to the creditor in obedience to this process is legalized, pro tanto, as if made to the principal debtor. The statutes evidently presuppose such a jurisdiction over the trustee, that, ordinarily, their provisions may be carried into full execution against him, by the. means which they have provided.

But these means must prove very inadequate to their object, when neither the trustee nor the effects can be reached by the first execution, nor the-trustee served with the necessary process, preparatory to the second and conclusive judgment, against him.

And although this consideration might have less weight, in those cases where execution is authorized directly against the trustee in the first instance, yet, as such a case is not to be anticipated, but depends upon the nature of his accountability to the principal debtor, which can only appear by the .disclosure or other evidence on trial; the distinction furnishes no aid upon a preliminary point of jurisdiction. If, therefore,.the question rested solely upon the statute of 1797, we should incline to decide, that none but persons resident in this state could properly be holden as trustees.

This opinion, however, is fortified by both the succeeding statutes. Under that of 1S17, the trustee must be “an inhabitant of this state a limitation scarcely to be accounted for, if, under the previous general act upon the subject, any person could be holden as such', who should happen to be found within the state.

And the act of 1830, by speaking of the absent debtor as one “ having money, goods, chattels, rights or credits to him belonging, with any person or persons- in this state,” carries a very strong implication, that while the residence of the debtor is without the state, that qf his factor, agent, or trustee, is within it..

On the whole we are satisfied, that the cases cited from Massachusetts have -proceeded upon correct views of the trustee process in general; and in accordance with those views, as well as from what we deem to be a just and obvious construction of our own statutes, we consider that the trustee was properly dismissed,. Judgment of the oounty court affirmed.