Thayer v. Pratt

Bellows, J. It is decided in Foster v. Dudley, 30 N. H. 463, that a trustee may be charged in foreign attachment, though an action be pending by the principal debtor against the trustee, provided the trustee has still an opportunity in that action, to plead the recovery in the trustee process ; but if that process be commenced after the suit by the principal debtor has passed the stage where a recovery in the trustee process could be pleaded, the trustee cannot be charged; and it was accordingly held that where, at the time the trustee suit was commenced, a verdict had been rendered in the suit of the principal debtor, although there had not been judgment thereon, the trustee could not be charged. This stands upon the ground, that, as the'statute provides for the discharge of the trustee for so much as may be taken from him under this process, and empowers him to give the matter in evidence in a suit by the principal debtor, it must have been contemplated that he would be charged as such trustee only in cases where an opportunity remained to set up such matter in discharge; otherwise he might be twice charged for the same debt, which couid not have been intended. In Massachusetts, under a law much like ours in this respect, it is held, that, if the trustee suit be brought after issue has been joined in the suit by the principal debtor, the trustee cannot be held ; the court, Parsons, G. J., holding that the effects in the hands of the trustee must be attached under such circumstances as will enable him to plead the attachment in bar of the action of the principal, so that he may defend himself at law, and not rely on a relief to be granted by the judge at his discretion. Kidd v. Shepherd, 4 Mass. 238. So the court refused to charge the trustee, when, at the time he was summoned as such, the referees in an action by the principal debtor against him, had agreed on their report, upon the ground that no day for pleading remained for the trustee, and the law furnished him with no legal defence against the demand of the principal. Howell v. Freeman & Tr., 3 Mass. 121. The same doctrine is announced in McCaffrey v. Moore & Tr., 18 Pick. 492. This doctrine is recognized in Thorndike v. DeWolf, 6 Pick. 122, where the court is inclined to think it would have been better originally that the commencement of the suit by the principal against the trustee should have exempted him from the trustee process. In our own State it was for a long time understood that a trustee could not be charged in a process of foreign attachment commenced during the pendency of a suit by the principal debtor against such trustee to recover the same property. It was so expressly decided in 1832, in [473] Burnham v. Folsom, 5 N. H. 566, where the cases were fully considered. The decision was put upon the ground that the provision in the statute for the discharge of the trustee for the sums taken in that process, limited the broad language of the other section, and confined the liability of the trustee to cases where the property in his hands is so situated that he can detain it against the will of the principal, and avail himself of a payment to the creditor of the principal, as a defence to any suit brought by the latter. It is said, also, in this case, that in England it seems always to have been held that there cannot be an attachment of a debt for which a suit in a superior court is already commenced; and so it is laid down in Com. Dig. Tit. Foreign Attachment D.; and it was so held in Babington v. Babington, Cro. Elis. 157, and Humphrey v. Barnes, Cro. Elis. 69, where it is said, that, while the suit is depending, the credit is quasi custodia legis, and cannot be meddled with by another. See, also, Gridley v. Harraden, 14 Mass. 496. Before the cases of Foster v. Dudley, 30 N. H. 462, before cited, we think the doctrine of Burnham v. Folsom was received as the law, and was supported by respectable authorities. This case, and the authorities cited therein, seem not to have been adverted to in the opinion in Foster v. Dudley, and it is possible, although not very probable, that they were overlooked. The doctrine of this case, however, is explicit that a credit cannot be attached after a suit by the principal debtor has passed the stage when a recovery in the trustee suit could be pleaded ; and we are not disposed to extend it. We are rather inclined to hold, as in Kidd v. Shepherd, 4 Mass. 238, that such attachment cannot be made after the suit of the principal debtor has gone so far that the defendant could not, as matter of right, plead the recovery in the trustee suit. Our statute must be construed in reference to existing remedies, and we are aware of no practice that will justify setting aside a verdict that has been fairly and properly rendered, to let in a defence arising afterwards. With these views the Trustee must be discharged.