Ladd v. Jacobs

Appleton, C. J. The writ in this action was sued out on May 2, 1872. Before that date four several trustee processes had been served on the plaintiff and this defendant as her trustee, in all which [349] judgments have been obtained against both principal and trustee. The executions, which issued in these several trustee processes have all been paid by the trustee, leaving a balance still due on the plaintiff’s claim against him. It is claimed that this action was prematurely commenced, the defendant having been previously summoned as a trustee of the plaintiff. The plaintiff commenced a suit upon a claim which was due and unpaid. By the service of the trustee processes upon the defendant his indebtedness to the plaintiff was held to respond to the final judgments which might be recovered in the several actions, of which service had been duly made upon him. If the plaintiffs in those suits should fail, the defendant would be discharged as trustee. So, unless a demand is made within thirty days after judgment, the lien created by the* attachment will expire. In case judgment is recovered against the principal debtor and trustee and the same is satisfied by the trustee, such judgment will discharge the trustee “from all demands by the principal defendant or his executors or administrators, for all goods, effects and credits, paid, delivered or accounted for by the trustee thereon.” B. S., c. 86, § 14. The suing out a trustee suit is not a bar to the commencement of a suit by the principal defendant against the trustee. If it were to be so held, the defendant might lose an opportunity of securing his debt against the trustee, or it might become barred by the statute of limitation, by reason of the pendency of the trustee process. In Nathan v. Giles, 5 Taunton, 558, it was held, that a foreign attachment pending is no bar to an action until judgment be recovered in the attachment suit. When judgment is recovered, it becomes a bar to the extent of the amount paid by the trustee and his costs. It follows that the plaintiff is entitled to recover the balance remaining due after deducting the judgments paid by the defendant and his judgments for costs. Knowing the pendency of the trustee processes against her, the plaintiff voluntarily incurred the [350] risks of her suit. If the whole debt of the defendant was required to meet the claims against her, she would fail in this action. If they reduce the amount to be recovered by her to less than twenty dollars, as would seem to be the case, her costs must be •limited to a quarter of the debt recovered. Judgment for the plaintiff accordingly. ’Walton, Dickerson, Barrows, Danforth and Libbey, JJ\, concurred.