Citation Numbers: 62 Vt. 101
Judges: Rowell
Filed Date: 10/15/1889
Status: Precedential
Modified Date: 7/20/2022
The opinion of the court was delivered by
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
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.