33 N.H. 511 | N.H. | 1856
As the pleadings in this case were in conformity with the provisions of the 38th section of the 208th chapter of the Revised Statutes, in the absence of any suggestion from the counsel on either side, we are led to infer that the ruling of the court below, to which exception was taken, must have been predicated entirely upon the informalities and inequalities of the proceedings in the trustee suit before the police court of Manchester.
In the original trustee suit the plaintiff and principal defendant were both described as of Manchester, in the county of Hillsborough, and the trustee as of Candia, in the county of Rocldnghom. In such case the writ should properly have been directed to the sheriff of any county in the State, or his deputy, or to any constable of Manchester or Candia. Revised Statutes, chap. 208, sec. 40.
But this was a matter which might have been amended on motion. The service on the trustee having been made by the proper officer, though not in fact directed to him, leave would have been granted to insert the requisite direction. Hearsey v. Bradbury, 9 Mass. 95; Wood v. Boss, 11 Mass. 271, 276.
The provisions of section 41, of chap. 208, in relation to the filing of a bond, were intended purely for the protection of the trustee in his costs, and if none were filed with the original suit in this case, the trustee is undoubtedly to be considered as having waived his right to insist upon one, by appearing term after term, and making his disclosure without taking the objection. Farnum v. Davis, decided in Merrimack, December term, 1855.
The proceedings in the suit, Mary Morrison against the present plaintiff as principal defendant, and the present defendant as trustee, were before a court having jurisdiction of the cause; the parties were all present, all the objections now raised to the validity of those proceedings were then open to them, and they cannot now avail themselves of those objections to avoid the legal effect of those proceedings. The judgment in that suit is therefore conclusive upon everything directly settled by it. It was settled by that judgment that the present defendant was indebted
But that judgment and the evidence of its satisfaction are only conclusive pro tanto. The plaintiff is not thereby precluded from insisting that the sum found by the police court of Manchester in the hands of the defendant, and for which he was charged as trustee, was not the whole amount of the defendant’s indebtedness to him at the time, for that was not a matter directly in issue on the trial before that court. The plaintiff in that suit, Mary Morrison, having taken the defendant’s disclosure, and obtained the judgment of the police court thereon, was concluded by it. But the present plaintiff was not strictly a party to that issue. There were separate proceedings on that trial. The judgment was conclusive against the present plaintiff as to the amount of his indebtedness to Mary Morrison, but not as to the amount of the trustee’s indebtedness to him. It is only evidence against him to show what amount of the defendant’s indebtedness to him the defendant was charged for and paid under those proceedings. Demeritt v. Lyford, 7 Foster 541; Drew v. Towle, 7 Foster 412; Puffer v. Graves, 6 Foster 256; Graves v. Brown, 11 Mass. 334; Cushing’s Trustee Process, sec. 280; Ingraham v. Olcock, 14 N. H. 243.
As we are of opinion that the evidence rejected was clearly competent for the purpose of showing how far the property of the defendant and his indebtedness to the plaintiff had been appropriated towards the payment of the plaintiff’s claim, and that it was a conclusive bar to so much of said claim as had thus been paid, the verdict must be set aside and a
New trial granted.
