dissenting. Edgell and Phelps are severally summoned as the trustees of Leach. Edgell alone is pursued as trustee. The case was referred to a commissioner to take his disclosure and report facts. Phelps entered as claimant. The case proceeded to judgment against the debtor, and also against Edgell as his trustee. To the judgment against Edgell, Phelps as claimant, took exceptions, and thereon the case is now before this court. We are to revise it and ascertain whether error in point of law was committed against Phelps in rendering it.
The statute contemplates that a party coming in as claimant shall draw up and file allegations, setting forth his claim to the property or credit sought to be reached by the pending process, that issue may be taken thereon by the plaintiff, and a trial be liad either by the court or the jury, as the court shall direct; Comp. Stat., ch. 32, secs. 53, 54, 55. In this case Phelps-filed no allegations, nor was any issue formed as to any right or claim *760that he might have, nor was any mode of trying his claim directed by the court, nor any proceeding had in reference to it. All that the case shows as to any proceeding by him or in his behalf is, that he appeared before the commissioner, whose business was solely to hear the matter as between the plaintiff and the trustee, and there offered to prove certain facts. The commissioner rejected said offer, and as it seems to me for very good reasons. The matter of the claimant’s claim was not within the scope of his commission, nor does it appear that the plaintiff or the trustee was assenting that the commissioner should take cognizance and proceed with the trial of it. The law of 1853 does not contemplate that the matter between the plaintiff and a claimant should be referred to a commissioner, but only the matter between the primary parties to the suit.
The facts found upon the disclosure of Edgell and the papers laid before the commissioner show that Edgell had received prop* erty and the avails of property, in which Leach primarily had an interest, and prima facie to the extent of one-half of the avails of the property thus received. Of said avails it appeared that more than one-half had been paid over to Phelps, the claimant, thus leaving the residue, both lawfully and equitably, as between Leach and Phelps, the property of Leach. Whether Leach was entitled to the property and funds remaining in Edgell’s hands, as between Leach and Phelps, could only be controverted by Phelps, by showing matter outside and beyond the relation existing between them by force of the papers exhibited, and depending on matters resting in pais, which, in order to be available to Phelps as against the plaintiff, should have been in some manner alleged, so that issue might be taken thereon, and a trial had in due form of law.
Only in two respects does it seem to me that any question of error is presented by the case, as it is now before us; first, the rejection of the evidence offered by Phelps before the commissioner, by which he claims that he has been improperly prevented from showing his right as claimant. As already intimated, I do not regard the action of the commissioner in this respect to have been erroneous, and for the reason that no matter was before him that required him to go into a hearing of the claimant’s *761claim, as there was no allegation or issue on that subject, and no order of the court, such as is provided for and contemplated by the statute in that behalf. If, through negligence or misapprehension, Phelps found himself out of place in respect to his right to show his'grounds of claim before the commissioner, it seems to me that his proper course was, before coming to this court, to have filed his allegations by leave of the county court, and proceeded to a hearing in due course in that court, and then upon a case properly made up, if the judgment had been against him, he could have come upon a proper footing into this court to assert and maintain his legal rights.
Secondly, does the case show that the judgment is without legal foundation ? I think not. On the contrary, it seems to me to show that it' has legal foundation, and in the absence of further showing, by the claimant, of other ground and reason for his claim to the property, I think the judgment was right; that is to say, I think the case shows funds of Leach in Edgell’s hands, which, upon the facts now shown, it does not appear that Phelps has either the legal or equitable right to fasten upon, and that his right to do so can only be substantiated by his showing the facts that he offered to prove before the commissioner, which offer was, in my opinion as above stated, properly rejected.
Again, I have difficulty in seeing how Phelps is in position as the case now stands, to be properly complaining of the judgment of the county court. He was before that court as claimant. The judgment was in favor of the plaintiff upon the trustee’s disclosure and the facts reported by the commissioner. Not having filed any allegations of claim, and thereby put himself in the position of a party litigant, of course the matter was proceeding as it properly should, in the same way as if he had not entered. It was proceeding between the plaintiff and the trustee.
The trustee is not complaining of, or excepting to the judgment. He is willing to stand the hazard of liability under the disclosure and the finding of the commissioner, and the judgment of the county court, leaving Phelps to pursue his rights in such way, legitimate or illegitimate, as he may see fit to adopt.
In my opinion the reversing of the judgment involves the virtual ignoring of the provisions of sections 53,54 and 55 of chap. *76232 of the Comp. Stat., and the engrafting of a new section into the trustee act of 1853, in addition to the general trustee law, and moreover will he incongruous with some features of the decision in Russell v. Thayer et al., 30 Vt. 525, the opinion in which embodied, as I understood at the time, the concurrent views of the several members of the court who sat in the trial of the case.
I regret my inability to concur in the result in which my brethren agree, and dismiss the subject with this comprehensive statement of the reasons which lead me to dissent.