Hill v. Whitney

The opinion of the court was delivered by Bennett, J. This action is predicated upon a note given in 1837, and it stands admitted by the exceptions that the persons sued as principal debtors were resident citizens of this state, and not absent or absconding debtors, nor concealed within the state, at the time the suit was commenced. A motion was filed by the principal debtors to dismiss the suit. It is contended by the plaintiff’s counsel that all that should be done is to discharge the trustee, and then let the case proceed between the plaintiff and the principal defendants, the same as if the trustee had never been called into court; while, on the other hand, it is insisted that the whole action should be dismissed. The Revised Statutes, (page 190,) provide that' all actions may be commenced by the trustee process, which are founded upon any contract made since .the first day of January, 1839, and upon [463] any contract where the principal defendant has absconded from, or is a resident out of, this state, or is concealed within the same. This is a case which does not come within the law, and'of course there was no authority to use the trustee process in the commencement of the suit. It is quite apparent, that, to sanction the use of the trustee process in the commencement of a suit, it must be used in case a provided for by the statute ; if not, the process is used against law. If this were a new question, we should have no difficulty in disposing of it; but, in effect, we think, it has been settled. In the case of Austin v. Grout, Trustee of Palmer, 2 Vt. 489, there was a plea in abatement, by the principal debtor, that he was not an absconding, or concéaled debtor, &c., and replication that he was. Upon the facts reported the court held that it was not a case within the provisions of the trustee law, and sent the case back to the county court, that the issue might be disposed of accordingly. In Boardman v. Bickford & Tr., 2 Aik. 345, the principal defendant pleaded in bar that he was not an absconding or concealed debtor, upon which, it is true, issue was taken ; but in the case of Emerson et al. v. Paine & Tr., 9 Vt. 271, a like plea was interposed by the trustee himself, and it was expressly held to be a good bar of the action. In Stanley v. Ogden, 2 Root 259, which was a scire facias against the trustee, it was even held that he might plead in bar that the original action against the principal debtors was founded in tort, and not a proper case for the trustee process. In the case of Bradley v. Cooper, and the Town of Richmond, his trustee, 6 Vt. 121, upon the motion of the trustee the whole suit was dismissed, upon the ground that the trustee process would not lie against the town, as trustee of an absconding or concealed debtor. If the motion to dismiss had been made by the principal debtpr, certainly it should have been received with as much favor. We think, then, as this trustee suit was brought in a .case not warranted by the statute, the principal defendants have a right to insist that the action shall be dismissed. The judgment of the county court is reversed, and judgment rendered that the plaintiff’s suit be dismissed.