Oren Lyman & Co. v. Wood
Supreme Court of Vermont
Assumpsit. Plea in abatement, to which the plaintiffs demurred generally. At the May term, 1868, Barrett, J., presiding, the court sustained the demurrer and' gave judgment for the plaintiffs, to which the defendant excepted. Judgment was rendered against the trustee according to his disclosure.
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Assumpsit. Plea in abatement, to which the plaintiffs demurred generally. At the May term, 1868, Barrett, J., presiding, the court sustained the demurrer and' gave judgment for the plaintiffs, to which the defendant excepted. Judgment was rendered against the trustee according to his disclosure. The plea in abatement was as follows : “ That Otis Chamberlin is one of the plaintiffs named in the plaintiffs’ said writ, and is also named in the said writ as trustee of the said defendant, and this defendant avers that the said Otis Chamberlin, who is named in said writ as one of the plaintiffs…
1Opinion of the Court
*114The opinion of the court was delivered by
Prout, J.
The plea is bad. First, as it is not alleged that the writ was served on the trustee or that he accepted service. Unless served in some mode, he is not a party trustee to the suit, although named as such in the process. Pike v. Blake, 8 Vt., 400. Second, because the plea prays judgment of the process as against all parties. If the suit could not be maintained against the trustee, no reason is alleged why it could not against the principal defendant. The theory of the proceeding is that it could, and this is often the result in a trustee suit.…
2Cases cited2 opinions
- Pike v. BlakeSupreme Court of Vermont · 1836
- Edson v. TraskSupreme Court of Vermont · 1849
3Cited by6 opinions
- La Varre v. International Paper Co.District Court, E.D. South Carolina · 1929
- Beach v. FairbanksSupreme Court of Connecticut · 1884
- Brown v. WileySupreme Court of Georgia · 1899
- United States National Bank v. RawsonOregon Supreme Court · 1935
- Knight v. William P. Clyde & Co.Supreme Court of Rhode Island · 1878
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