J. W. Ellis & Co. v. Goodnow

The opinion of the court was delivered by Barrett, J. The point put by counsel for the trustee, as the only question that can be of any moment, seems to us to be well stated by him, viz: “ Was the ninety-five dollars in the hands of the trustee depending on a contingency, within the meaning of the Gth section of chapter 34 of the General Statutes?” If it was, then this process cannot be maintained against him. If it was not, then it is virtually conceded that the judgment of the county court is right. The first division of said 6th section is in the nature of a provisional exception to the 2d section, taking out from its operation what is embraced within its terms, and for which otherwise the trustee process might be used, viz : debts not absolutely due, and depending on a contingency at the time of the service of the process. This provision contemplates the relation of debtor and creditor, and not the fiduciary, relation created by a deposit, pledge or bailment. The statute uses the terms “ goods, effects or credits of the principal defendant.” The first two seem to contemplate and embrace property in the trustee’s hands which is owned by the debtor. The term credits seems to contemplate debts owing by the trustee to the debtor. It is this last subject-matter of the trustee process to which the first division of said Gth section applies. The relation of the trustee to the debtor in this case, by virtue of the money in the trustees hands, does not fall within that provision. The money, at the time of the service of the process, was the property of the debtor deposited in the trustee’s hands, It was effects of the debtor held by the trustee as security against a pending liability. The trustee was a bailee or depositary coupled with an interest, and, at all times, as such, was accountable to the owner of the money, or to those who might stand in his right. After the process had been served it was not in the power of the debtor and trustee to change the character of the relation by any understanding or agreement, so as to affect the right of any creditor that had attached to the effects of the debtor in the [241] hands of the trustee in virtue of the relation as it existed at the time of such service. The letter of the debtor to the trustee of October 4th, 1865, is, therefore, nugatory for any purpose of vesting the absolute ownership of the money in the trustee as against the trustee process of the plaintiffs. Aside from this there is nothing found by the commissioner tending to show that the trustee at any time held the money in any other character than that of bailee or depositary for his indemnity as bail of the debtor; and when he was discharged from all liability as such, he then became accountable under the trustee process for said money, with the right .only of retaining so much of it as was necessary to make good the indemnity, for which he had received and was holding it. As the amount of it far exceeded the plaintiffs’ judgment, and no showing being made of any damnification of the trustee as bail for the debtor, and it appearing that he was discharged as bail at the September Term, 1865, of the county court, it seems clear that the trustee was properly held chargeable by the county court. Very proper ideas appertaining to this subject are well presented by Judge Bennett in Downer v. Curtis & Trs., 25 Vt. 650; see also Hurlbut v. Hicks et al. & Trs., 17 Vt. 193. We think th'e commissioner properly received and properly used the evidence that was objected to. The judgment is affirmed, with costs, against the trustee in this court.