
    John Dunning versus David Owen and Russell Stoddard, his Trustee.
    It is not a sufficient bar, by the principal debtor in a foreign attachment, that the person summoned as trustee had not, at the time of the service of the process upon him, any goods, effects, or credits, of the principal in his hands.
    To an action of debt on judgment, in which also a trustee was summoned, the defendant pleads, in bar, that the plaintiff had caused him to be committed to prison in execution of the judgment.
    The plaintiff replies, that, after suing out his execution, he discovered goods, effects, and credits, in the hands of the supposed trustee, unattachable by the common and ordinary process of law; whereupon he sued his writ in this case, and within seven days thereafter caused the defendant to be discharged from his imprisonment, according to the statute, &c.
    The defendant rejoins, that the plaintiff knew of the depositing of the said goods, &c., long before the commitment of the defendant, and might have attached the same, and that the said goods, &c., were, before the said commitment, for a valuable consideration, assigned, &c.
    On demurrer to this rejoinder, the plaintiff had judgment
    The plaintiff declares in debt on a judgment recovered by him against the said Owen, at the Court of Common Pleas for this county, June term, 1811, for the sum of 536 dollars 16 cents damage, and 16 dollars 99 cents costs; which judgment he alleges to be in full force, not reversed, annulled, or satisfied, although a writ of execution had issued thereon; whereby an action has accrued to him, to recover the said sums, with 16 dollars 69 cents more, for the execution and expenses in the service thereof.
    The defendant pleads in bar, that the plaintiff delivered his said execution to a deputy sheriff, who, on the 13th of August, 1811, in virtue thereof, took the body of the said Owen, and committed him to prison in execution of said judgment, as by the said execution he was commanded to do.
    The plaintiff replies to this plea, alleging that, after the recovery of the said judgment, and after the issuing of the said execution, he discovered goods, effects, and * credits, of the said Owen in the hands and possession of the said Russell Stoddard, which could not be attached by the common and ordinary process of law ; whereupon, on the 30th of May, 1812, he sued out the original writ in this case; and within seven days after the service thereof on said Stoddard, viz., on the 4th of June, 1812, he discharged the body of said Owen from prison, by a note or memorandum in writing, directed and delivered to the officer who had him in custody, stating the reason and occasion of the said discharge, pursuant to the form of the statute in such case made and provided.
    
      The defendant, in his rejoinder, avers that, long before, and on the day of, the commitment of him, the said Owen, in execution of the judgment aforesaid, he had deposited in the hands of said Stoddard certain effects and credits of his, viz., the rents of a certain tenement in Brunswick, to the amount of 487 dollars and 50 cents, secured by deed indented ; which said rents were all the effects or credits which the said Owen had ever deposited in the hands and possession of the said Stoddard before the date of the plaintiff’s said writ, of which the plaintiff then and long before, and on the day when the said Owen was committed to prison as aforesaid, had due notice from the said Owen; which effects and credits the plaintiff, before and on the day of said commitment, might have attachment in the hands of the said Stoddard; and the same continued in the hands and possession of the said Stoddard until the 20th of September, 1811, when the said deed, and all the rents therein secured to be paid as aforesaid, were, for a good and valuable consideration, duly and legally assigned to one Mary Owen; of all which the plaintiff, at the time of suing out the writ in this action, had notice.
    To this rejoinder, the plaintiff demurs, and assigns for cause, that it is double in this, that it is therein alleged that before and on the day of the said commitment, the said Owen had deposited, &c., of which the * plaintiff had notice, &c., and that the plaintiff might long before have attached the same; and also that the said Owen had, for a good and valuable consideration, assigned the same, &c., and that the plaintiff had notice of said assignment, &c.
    The defendant joins in demurrer.
    The defendant, in a second plea in bar, alleges that, at the time of suing out the plaintiff’s writ against the said Owen and the said Stoddard as his trustee, the said Stoddard had not in his hands and possession any goods, effects, and credits, of the said Owen.
    
    To this plea the plaintiff replies, that, at the time of the date, &c., of the said writ, he had good and sufficient reason to believe, and did in fact believe, that the said Stoddard had in his hands goods, effects, and credits, of the said Owen, which could not be attached by the common and ordinary process of law.
    The defendant, in his rejoinder, sets forth the purport of the said indenture of lease between him and the said Stoddard; and avers that, after the said judgment, and before the commencement of the present suit, he offered the plaintiff to assign and transfer to him the said indenture, and all the sums of money covenanted thereby to be paid, upon and towards the said judgment; which the plaintiff refused to accept; and which was all the effects the plaintiff had good and sufficient reason to believe were deposited, &c.; of all which the plaintiff was ever well knowing, &c.
    To this rejoinder the plaintiff demurs generally ; and the defendant, joins in demurrer.
    The cause was argued upon these pleadings, at the last May term in this county, by Longfellow for the plaintiff, and Orr for the defendant.
    
      Longfellow.
    
    Besides the duplicity of the rejoinder in the first set of pleadings, the first plea in bar is bad. It is not sufficient to allege only that the defendant has been taken and committed in execution. It may be that he afterwards committed an escape, or that he had been liberated by taking the poor debtor’s oath. It should have been averred that the plaintiff, after his commitment, * voluntarily permitted him to go at large, or that the debt has been in some way satisfied.
    The second plea in bar furnishes no objection to the plaintiff’s recovering judgment against Owen; for if the supposed trustee is discharged, or the plaintiff discontinues the suit as to him, he may still proceed to trial, judgment, and execution, against the principal debtor. '
    
      Orr.
    
    The plaintiff must derive his title to this action, after having committed his debtor in execution, from the provisions of the statute of frauds.  But his case is not within that statute. By the fourth section, the right to this process is made to depend on the plaintiff’s discovery of goods, &c., not attachable by the ordinary process of law. But here it was made known to him that all the demands which his debtor had upon Stoddard had been long before legally transferred to another. Neither does the charge of neglecting to give the creditor notice, which, by the third section of the statute, is made a fraudulent transaction, apply in this case ; for the debtor had given the notice of this fund long before the assignment of it. The provision, being in derogation of a common law principle, should be strictly construed.
    These two sections of the statute of frauds are dependent on each other, and also on the provincial act of 32 Geo. 2,  which was in force when the statute of frauds was made, and is expressly referred to therein. But they are not dependent on the existing statute, which gives the process of foreign attachment;  for, by tire fourteenth section of this last statute, the use of this process is limited by the regulations contained in the statute of frauds. It follows, that the statute of frauds is to be construed as if the act of Geo. 2 had not been repealed, and the statute of 1794 had not been made ; except so far as this last gives the forms of the process ; while the right of action against a debtor in execution accrues by the statute of frauds alone. It was never the intention of the statute that a ‘creditor should have a right to commit his debtor, and to commence a process of foreign attachment, at the same time. He knew of *the credits in Stoddard's hands long before the commitment. He elected the latter remedy, and he is bound by his election. Many inconvenient and mischievous consequences might be shown to result from another construction.
    This action was not, in fact, brought with a view to secure the effects in the supposed trustee’s hands, as contemplated in the proviso annexed to the fourth section of the statute of frauds. The plaintiff knew it could have no such effect. It is a mere abuse of the process. It was essential that there should have been effects in Stoddard's hands ; otherwise, by the act of Geo. 2, the plaintiff must be nonsuit; because the disclosure of no effects negatives the fraud contemplated in the preamble of the act, which is the case in the present action. For the fourteenth section of the statute of 1795 expressly refers the judgment creditor to the statute of frauds, and this again to the provincial act. Both these are law in the present case; and the second plea in bar, which is not avoided, as well as the rejoinder in support of the first plea, are a sufficient answer to the action.
    As to the cause of demurrer to the first rejoinder, the defendant says that the declaration is bad. It avers that an execution issued, but it does not state whether satisfied or not. That the execution is unsatisfied is a traversable fact; and if found for the defendant, would avoid the judgment.
    The replication to the first plea is also substantially bad. It does not allege the discovery of the effects to have been after the commitment. This was necessary, or the plaintiff was bound by his election ; and it was necessary, too, to bring homé the fraud to the debtor.
    But if both were good, so is the rejoinder. It avoids the replication, and supports the bar. It negatives the neglect to make known effects in the hands of the trustee; on which alone the action could be sustained. All the facts tend to one point — the legal disposition of the property pretended to be sued for, in the aands of Stoddard. To make the rejoinder double, there must be * two unconnected facts, either of which would of itself avoid the replication, and support the bar. 
    
    If the assignment to Mary Owen were of itself a sufficient answer to the action, then the second plea in bar is a sufficient answer, which is not avoided by the replication to it. It is alone a complete defence; for the assignment of property shown to have been once in the hands of Stoddard, and the denial that any Was in his hands when the action was brought, are equivalent expressions. But that the assignment might appear, the property in the hands of Stoddard must first be shown, as inducement to it. If the inducement is broader than is necessary, in showing notice to the plaintiff of the effects in Stoddard’s hands, this part of the inducement may be rejected as surplusage: it does not vitiate.
    The cause standing continued for advisement to this term, the opinion of the Court was now delivered by
    
      
      
        Stat. 1788, c. 16.
    
    
      
       Vide Ancient Charters, &c. c. 267.
    
    
      
      
        Stat. 1794, c. 65.
    
    
      
       1 Burr. 317__Chitty on Pleading, 511.
    
   Wilde, J.

This case turns altogether on the validity of the first rejoinder; for there is nothing in the objections made to the declaration, or to the first plea in bar; and as to the second plea, it is clearly insufficient.

The declaration sets out a judgment, and avers that the same remains in full.force, not reversed, annulled, or satisfied ; which is substantially good, without setting out the doings of the officer upon the execution. And if this were not so, the defect must be considered a formal one, and would be cured by pleading over ; the supposed deficiency in this case being supplied by the defendant’s first plea, in which he alleges a commitment under the execution.

To this plea it has been objected, that it does not show a discharge or satisfaction of the debt. The answer is, that it shows execution executed, by the commitment of the body of the debtor; and the legal presumption would be, that he still remains in prison, had not the plaintiff averred the contrary in his replication.

As to the second plea in bar, it is clearly no defence for the principal to plead that the trustee, at the commencement of the action, had not in his possession any * goods, effects, or credits, of the supposed trustee ; for the statute expressly authorizes a plaintiff to proceed to trial, judgment, and execution, against the principal, notwithstanding the discharge of the trustee. Such a plea, therefore, is altogether irrelevant; so that we are brought to the consideration of the rejoinder, upon which the merits of the whole case will be found to depend.

It has been argued at the bar, that the rejoinder is bad ffir duplicity; and whether it is so or not, must be determined by the construction to be given to the fourth section of the statute against fraud and perjury.

According to the construction contended for by the defendant’s counsel, a judgment creditor, after commitment of the debtor in execution, is not entitled to the benefit of the trustee process, unless he is able to show by evidence, independent of the oath of the trustee, that goods, effects, or credits, were deposited in his hands at the time of the commencement of the action; and that this had been first made known to the plaintiff after he had taken the debtor in execution.

If this be the true construction of the statute, it would seem difficult to avoid the objection of duplicity in the rejoinder; for one fact therein alleged is, that the plaintiff had notice of the rent due from the trustee to the principal before and at the time of the commitment ; and then, again, it is alleged that the same rent was assigned, bond fide, to a stranger, before the commencement of this suit, with an averment that no other effects or credits were ever deposited in the hands of the trustee, &c.; so that the rejoinder contains two independent facts, neither of which can be rejected as surplusage, since either of them, on the construction contended for, would be alone a sufficient bar to the action.

The defendant’s counsel therefore, to avoid this difficulty, must be compelled to yield one branch of his argument; and if we were of opinion that, according to the true construction of the statute, one of his propositions * is well founded, and the other not, then doubtless the fact introduced in support of such erroneous proposition might be rejected as surplusage. Whether the objection can be thus removed, we shall not undertake to determine, since we have been led to adopt a more liberal construction of the statute than ,the one contended for; and which is, in our opinion, more consistent with the probable intention of the legislature, and better suited to the ends of justice.

In the first place, then, we cannot believe that the legislature could have intended to compel a creditor, in a case like the present, or in any case, to pursue his remedy against a supposed trustee, at the hazard of losing his debt, should the trustee be able to discharge himself; because, frequently, the creditor can have no certain means of information. The principal and trustee may combine for the purpose of concealment; and that such may be the case, seems supposed by the course of proceedings prescribed by the statute giving the trustee process; for the prevention of which the trustee is put upon his oath. Besides, we find a provision in the same statute which authorizes creditors generally to proceed to judgmern and execution, notwithstanding the discharge of the trustees, without turning them round to new actions. Nor do we see any reason why this provision should not be considered as applicable to a case like the present, as well as to cases of other creditors : the present process being given, it must be presumed to be given with all the privileges belonging to it, as described in the statute.

Further, the defendant, as has been before intimated, cannot be admitted to plead that there has been no deposit of goods, effects, or credits, in the hands of the trustee. This fact must be settled by the disclosure of the trustee. For if the principal were permitted to controvert it by the intervention of a plea, the plaintiff might be deprived of an important benefit; since, if the facts should be only known to the principal and the trustee, which may fre quently happen, the plaintiff * would have no means of maintaining the issue on his part, as the trustee could not be examined as a witness on the trial of an issue to the jury, unless first discharged from the suit.

That part of the rejoinder, therefore, which goes to controvert the existence of the trust or deposit in the hands of the trustee, must be adjudged irrelevant and inadmissible.

As to the remainder of the rejoinder, which alleges notice to the plaintiff before the commitment, although, at first view, it may seem a more plausible ground of defence, yet we are satisfied, from a careful examination of the statute, that it is not maintainable. The words of the statute are, “ that whenever a judgment creditor shall discover goods, effects, or credits, of his debtor that are unattachable by the common and ordinary process of law, he shall be entitled to process,” &c. This provision extends to all judgment creditors, and is not limited to cases where there have been commitments on execution.

Then at what time is the discovery here spoken of to be made ? The defendant contends that it must be after the commitment, in order to justify a trustee process commenced after such commitment. But it is not so said or implied in the statute, as we can perceive. The most that can be made of any limitation as to time is, that the discovery must be made after judgment is recovered.

The defendant’s counsel admits that the plaintiff, having notice of the deposit before and at the time of commitment, was then entitled to the present process; and certainly he was so entitled by the express words of the statute. This title was not lost by taking the debtor in execution, provided the plaintiff discharged him within seven days after commencing his action, as it seems he did. If he had failed so to do, his writ would have abated, and the defendant would have been entitled to recover treble costs. A right of action, * clearly given, is not to be taken away by doubtful implication.

For these reasons, we are all of opinion that the rejoinder, in the first set of pleadings, is bad; and that the first plea in bar being also bad, the plaintiff is entitled to judgment.  