Rogers v. Heath's Admr.

62 Vt. 101

• Court: Supreme Court of Vermont
• Decided: October 15, 1889
• Status: Published

Opinion

The opinion of the court was delivered by

Rowell, J.

Mr. Heath, the intestate, brought suit for the insolvent debtor, and prosecuted it until the adjudication of insolvency and appointment of the plaintiff as assignee, and thence till final judgment, which he collected. The plaintiff now seeks to recover the amount thus collected, less the amount of Mr. Heath’s bill for services rendered after plaintiff’s appointment. The defense claim an attorney’s lien on the money for the payment of the whole bill, as well the part for services rendered before the plaintiff’s appointment as the part for services rendered after the appointment; and this claim is sustained.

There are two ways of proceeding when one has a lien on property for securing the payment of a debt against an insolvent debtor. If the assignee or the creditor requires it, the property is sold under an order of the Court of Insolvency, the netproceeds applied towards the payment of the debt, and the creditor admitted for the residue, if any ; or the creditor may, if he elects, release and deliver the property to the assignee, and be admitted for the whole of his debt. If neither of these things is done, the creditor cannot prove at all, for he cannot make oath as required, that neither he nor any other person to his use has received security beyond what has been disposed of agreeably to law.

But the creditor is not bound to take either course, but may retain the property, if the assignee does not require it to be sold as provided, and enforce his lien.

Judgment reversed, and judgment for plaintiff for $17.25, with interest from the commencement of the suit.