Cutts v. King

Mellen C. J. delivered the opinion of the Court, as follows. By the second section of the Stat. 1782. ch. 21. the plaintiff was entitled to an execution on the recognizance of the defendant at any time within three years next after the debt thereby secured became payable. Before the expiration of that term the present action was commenced —and the first plea is founded on the position that no right of action then existed, because the plaintiff was entitled to execution. The statute gives the counsel the same remedy, process, action and execution on such recognizance, as are allowed, by law, on a judgment of a Court of record. It is clear that debt lies on a judgment, within, or after the year. Com. Dig. Debt, A. 2. The same prin [162] ciple is recognized in the case of Clark v. Goodwin, 14 Mass. 237. So that if the case before us were not an action against King and his trustee, but a common suit against King only, the first plea in bar must be considered insufficient. The facts staled in the second plea, unless avoided by the replication, furnish a legal bar to the action. But on comparing the replication with the provisions of Stat. 1788. ch. 16. sec. 4. [Revised Statutes ch. 61. sec. 16.] on which it is founded, it presents facts which completely avoid the plea in bar, provided those facts are true, or of such a nature as not to be traversable in the manner attempted by the rejoinder. It is unnecessary to bestow any attention on the surrejoinder; which the plaintiff’s counsel frankly admits to be a departure from the replication, and wholly insufficient. The whole question then depends on the merits of the rejoinder ;—in other words it is this,—is it competent for the defendant in this manner, and independent of the disclosure of the trustee, to put in issue the existence of effects and credits in the hands of the trustee 1 The design of the provision in the Statute of Frauds would be defeated if such a course could be legally pursued by the defendant; and we are satisfied that the present action cannot be barred in this manner. The intent of the law was to give a creditor, whose debt was in execution, an opportunity to make an experiment to save the debt by collecting it from funds which he might believe were deposited in the hands of some trustee, so as to be unattachable by the ordinary process of law. But it was not considered proper that the debtor should be continued in prison while the creditor was making this experiment. The statute therefore provides for the release of the debtor from confinement and that this release shall not discharge or impair the validity of the judgment. When the experiment on the trustee-process proves unsuccessful and useless, the debtor’s body may again be arrested, and committed on the execution issued upon a new judgment which may be rendered upon such process. As “p person may know of the existence of effects and credits in the hands of the trustee, but the trustee himself, his oath must have been considered as the proof to which a plaintiff in the process should be entitled. But in the case at [163] bar, the rejoinder is interposed to stop him in limine, and to deprive him of the power of obtaining this proof. The rejoinder therefore is badand not being well pleaded, the facts therein stated are not admitted. Most of the facts in the case of Dunning v. Owen and trustee, 14 Mass. 157. are similar to those in the case before us :—and the principles settled in that case are direct authorities for our decision in this. It presents a clear and learned construction of the two statutes to which the Court referred ; and we arc well satisfied of the correctness of that decision. The first plea in bar, and the rejoinder in the second set of pleadings are adjudged bad and insufficient, and there must be Judgment for the Plaintiff'.