Horace Wadsworth v. Alanson M. Clark, Trustee of Thomas Clark, 14 Vt. 139

The opinion of the .court was delivered by Bennett, J. It is apparent that all the property which-has gone into the possession of Alanson M. Clark, from Thomas Clark, by means of which the plaintiff now seeks to charge Alanson, as the trustee of Thomas Clark, is involved in the proceedings of the chancery suit of Thomas Clark. That suit had been set down for a hearing before this suit was brought; and a hearing in fact was had by the chancellor, before the disclosure in this case was filed, though the case was still with the chancellor for advisement.

We cannot anticipate the chancellor’s decree, and Alanson must perform it at his peril. If the trustee in this case should be made chargeable, he might be compelled to pay the demand a second time. The doctrine of the Massachusetts courts is, that a demand in suit cannot be reached by a trustee process, unless, by their rules of practice, the cause is in that situation that the party can interpose the proceedings in the trustee suit in bar of the action ; but if he can, the pendency of the suit is no objection. The case of Trombly Sax v. Clarks, 13 Vt. R. 123, recognizes the same doctrine.

Though this case is under the revised statutes, still they do not apply to a case pending in chancery. The proceedings of that court can in no way be arrested, and we think it is clear that the matters involved in the chancery suit, which had in fact gone down to a hearing before this disclosure was filed, should not be subject the trustee process. In this view of the case, we have no occasion to inquire whether, from the facts disclosed, we should otherwise hold the trustee chargable. The judgment of the county court is affirmed.