Todd v. Darling , 11 Me. 34 ( 1833 )

The opinion of the Court was, at a subsequent term, delivered by

Weston J.

An objection is taken to the original disclosure of the trustee; it being made not in court, but before a justice of the peace, which it is insisted was not then authorized by law. Whatever might have been the force of this objection, if made seasonably before the trustee judgment, and even admitting the judgment to have been erroneous, it remains in force, until reversed upon writ of error. It is a collateral judgment, incidental to a suit at common law, and can be vacated or avoided only by the same process, which would reverse the principal judgment. Crockett et al. v. Ross et ux. 5 Greenl. 443. The debt attached at the suit of Foster was absolute, although payable at a day then future. A lien was created upon that debt by that attachment, to the amount of the judgment rendered in favor of Foster, which the trustee has discharged. This sum therefore was rightfully allowed to the plaintiff in review at the trial.

It is contended that the trustee judgments, in favor of Zebedee Cook and of Samuel Darling ought not to be allowed to the plaintiff in review, upon the ground, first, that they could never have been enforced against the estate of the trustee, or secondly, that they have been barred by lapse of time. By the fourteenth section of the act concerning foreign attachment, revised laws, ch. 61, provision is made to enforce the attachment against the estate of the trustee, if he die either before or after his examination. This, it is urged, is limited to cases where, at the decease of the trustee, judgment had not been rendered against the principal defendant. But no such limitation is to be found in the section, if the trustee die before his examination, which happened in the judgments in question. His executor or administrator may in that case be cited, pending the original suit. Or if the trustee die after judgment, they may be called in upon scire facias; and this we are satisfied is the true construction of the statute.

No original action can be maintained against the administrator, after the estate of his intestate is represented insolvent, and commissioners of insolvency are appointed. It is insisted that the ad-ministratrix might and ought to have pleaded these facts in abatement. ff it was competent by law for her to have taken this course, the lien created by the original trustee judgment would have been entirely dissolved. The fourteenth section of the law concerning foreign attachment, before cited, contains no exception in regard to insolvent estates. And in all the cases there contemplated, a scire facias is necessary to make the attachment effectual. The policy of the law for the settlement and distribution of insolvent estates, does not require such an exception. If goods or chattels are specifically entrusted to the deceased, there is no reason why they should be administered as a part of his estate. The duty of the executor or administrator will be discharged by surrendering them upon the execution. If a debt be due from the deceased, the attaching creditor is substituted for his own. Ilis estate is not impaired, nor his other creditors injured. On a suggestion upon the record of the insolvency of his estate, no execution will issue upon the judgment rendered on the scire facias, but that judgment will be added to the list of claims against the estate, in order to participate in the dividend. To all interested, it is a matter of indifference whether it is allowed to the original, or to the substituted, creditor. The same course is pursued, wdiere an action is commenced prior to the decease of the insolvent debtor, and prosecuted to judgment afterwards. In that case a special attachment is dissolved by law, because it could not be sustained without prejudice to the other creditors. But they are not prejudiced by allowing to a creditor the same dividend, to which his debtor would otherwise have been entitled.

The administratrix could not have pleaded the insolvency in abatement of the scire facias. It was not an original action, but an incident to, and a continuation of, the former suit. This has boon decided in the case of Adams v. Rowe, infra.

The Court of Probate, in cases of insolvency, is to allow six months, and further time not exceeding eighteen months in the whole, to creditors to bring in and prove their claims. In this period, the time between the termination of one commission and the issuing of another, is not to be reckoned. It is no part of the time in which creditors may prove their claims, which can be done only while the commission is open. But in order to give effect to the limitation of four years for the protection of the estate, the commission ought not to be opened after that limitation has attached. Parkman v. Osgood et als. 3 Greenl. 17.

The administratrix, in the case before us, gave notice of her acceptance of the trust in February, 1829. Before the termination of four years from that time, the commissioners to receive and examine the claims of creditors against the estate of her intestate, had allowed the amount of the judgments in favor of Zebedee Cook and Samuel Darling, and they had also obtained judgments against her as administratrix, upon scire facias. These judgments therefore we are of opinion were properly allowed to the plaintiff in review; it being agreed that what has .taken place since the last term, upon the suits on scire facias, and in the probate office, are to be considered as evidence in the case, as if it had existed and been offered at the trial.^*

Judgment on the verdict.

* The facts occuring between June term, 1832, and June term, 1833, above alluded to by the Court, the Reporter has incorporated into the statement of the . case without distinguishing them from those proved at the trial, in accordance with the,spirit of the agreement between the parties.