39 A. 436 | N.H. | 1895
Subject to certain exemptions enumerated in the statute, "If . . . it appears that the trustee had in his possession at the time of the service of the writ upon him, or at any time after, any money, goods, chattels, rights, or credits of the defendant . . . he shall be adjudged chargeable therefor." P. S., c. 245, s. 19. Within the statutory intention, credit is the correlative of debt, so that the existence of a debt on the one part constitutes a credit on the other (Cush. Trust. Pr., s. 58); and the general rule in the construction of "credits" therefore being that where one person is indebted to another he may be charged as the trustee of his creditor (Ib., s. 146), the nature of the indebtedness, barring exemptions, is immaterial (Trombly v. Clark,
It is true that the contrary was held in Thayer v. Pratt,
But if under the statutes and the practice then existing this construction may have been warranted, it has no place under the present statute (first enacted in 1876), which expressly authorizes the supreme court to make and establish such rules and orders as may be necessary and convenient to carry into effect the various provisions of the chapter relating to trustee process. P. S., c. 245, s. 44. And no more has it any place under the expansive and more liberal practice which now obtains, and which is constantly developing with new ideas of right and justice, in accordance with the progress of society and the correspondingly enlarged conception of the common law of this state "for ascertaining, establishing, and vindicating contested rights in civil cases," which is now, but was not formerly, held to entitle each party "to such remedy, including form, method, and order of procedure, as justice and convenience require." Owen v. Weston,
Both under the statute and the practice now existing, there can be no doubt that the trustee may be charged in the present action by a judgment that will not subject him to double liability, or infringe the rights of anybody; and so the basis of the decision in Thayer v. Pratt having been removed, the decision itself has ceased to be an authority upon the issue now raised.
Unless in the meantime the attachment shall be released by the giving of a bond agreeably to s. 39, c. 345, at the coming trial term, upon the plaintiff's motion and upon proper cause shown, the action LeBlanc a. v. Clements may be brought forward from the April term, 1895, at which judgment was rendered for the plaintiffs; the execution in that case against the *411
trustee in this action recalled and rescinded; the judgment in that case against the trustee be suspended until further order; together with such other proceedings, orders, and process necessary for equitably charging the trustee in this action. Blake v. Adams,
If there are exceptional cases in which a judgment debt may not be the subject of trustee process, the present case is not one of that class.
Motion to discharge trustee denied.
All concurred.