Emerson & Petrie v. Nathan Paine, Trustee of George Petrie, 9 Vt. 271

The opinion of the court was delivered by Collamer, J. The trustee interposed a plea in bar, that -Geo. Petrie was not an absconding or concealed debtor. The county court refused, on motion, summarily, to dismiss this plea, to which the plaintiff -excepts, as error. A court may, in pursuance of its own rules of practice, and in some cases, in its judicial discretion, refuse, to receive a plea, but the refusal so to do, is in the ’mere exercise of discretion, ted such a proceeding cannot be revised upon a writ of error, in the .place of which the present proceeding is.

By such a course the plaintiff is deprived of no legal right. If the plea was such, that, by law, the trustee had no right to interpose it, it should be shown by a replication, if additional matter was necessary, or it should have been demurred to. The plaintiff insists, that the trustee had no right to make this plea in his own behalf, but only in behalf of the principal debtor, after confessing himself trustee. The plea, on its face, purports to be the plea of the trustee, in his own right. If this is unauthorized by law, the plaintiff should have demurred.

He would thereby have confessed nothing, as a demurrer only confesses that, which is legally pleaded. The plaintiff has traversed the plea, and, on trial, verdict and judgment were for the defendant. This is conclusive, and there is no error in the proceeding.of the court. If the issue was immaterial, the correction must be by application for a repleader in the county court. The court, however, are of opinion, that this was a legal plea. As a general rule, and at common law, a man can have no legal proceedings taken against him in relation to his debts and dealings, except by his creditor.

This is a right and a privilege of no inferior importance. That a man should be called into court and there subjected to personal examination, upon oath, in relation to debts and dealings with third persons, — a proceeding, which even those third persons could not themselve take,especial-b' " a court of law, — is not to be suffered but in case of imperative necessity, and by clear and express law.

Ourstatute provides, « any person or persons shall have in his, her or their “ possession, any money, goods, chattels, rights or credits of any “ person, who shall have secretly absconded from this State, or “ who shall keep concealed within the same, any creditor may “ cause such person, having such goods, &c. to be summoned as “ trustee,” &tc. The statute prescribes a form for the process, in which the plaintiff alleges, that the principal debtor is absconded or concealed, and that the trustee has effects, &c. and calls on him to answer, &tc.

This statute clearly interferes with the common law rights of the trustee, in many important particulars. It subjects him to the process of a stranger, with whom he has no privity. It calls him into court, when his creditor does not desire it. It subjects him to personal disclosure. It enables the court, on that disclosure and other evidence, to give a judgment against him, without the intervention of a jury, and from this judgment there is no review or appeal. Huntington v. Bishop, 5 Vt. Reports, 186.

It is not to be supposed this was intended to be done, but in a case of real necessity, such as is clearly within the statute. The statute, very clearly, subjects no man to this, but in the case of an absconding or concealed debtor. The right to call on a man, as trustee, even for a disclosure, by the statute clearly depends on the fact, that his creditor has absconded, or is concealed. This isa prerequisite or condition precedent to sustaining the action against any one.

To hold otherwise, would subject every man to the suit and interrogation of any one, who had sufficient curiosity or impertinence to investigate his dealings with his neighbors. It would, in effect, introduce the Massachusetts practice of sustaining this species of proceeding against any man, as the trustee even of his .resident neighbors. This we consider, not warranted by our statute, and contrary to the well known will of our legislature, which has been often applied to, to extend the process to such cases, and has uniformly refused.

It is said the principal debt- or may make this same plea, but his neglecting or refusing does not deprive the trustee of so doing. We consider the Connecticut practice, on this point, most consistent and correct under our statute. Was the plaintiff entitled to review ? This is an action, as common law, against the principal debtor, and as to him, and on all proper issues by him made, or made for him by the trustee, after acknowledging that relationship, according to the statute, either party is entitled to review. As to the trustee, it is a proceeding to hold a debt, or it is the attachment of a debt.

This is entirely a proceeding created and wholly regulated by statute. As to the trustee, it is a proceeding collateral and auxiliary to the action against the debtor, rather than an action against himself. As to him, there is no review. This was so decided in Huntington v. Bishop, and that was a plea by the trustee in his own right. This disposes of the case for the defendant and renders it unnecessary to pass on the plea in abatement. Judgment affirmed.