| N.H. | Jan 15, 1869
Under the Revised Statutes which were in force when this suit was commenced, it is well settled that the answers of the trustee need not be drawn in open court, or by the commissioner, where one was appointed to take the disclosure, or in the presence of the other party, but that this may be done elsewhere at some convenient place and with the aid of counsel. Whitney v. Cilley, 18 N. H. 334; Boston & Maine R. R. v. Salmon Falls Bank, 27 N. H. 455.
In the first of these cases the examination of a trustee is said to be like the examination of a party by his answer in equity, and that he is entitled to the aid and advice of counsel to guard him against inadvertent admissions and statements that might have the, effect of charging him unjustly and against his meaning and purpose, and that nothing was found in the law against such privilege. In the other case it was held that the trustee was not like a witness testifying between parties ; but is a party himself, and his interests and rights are often deeply affected by his answers, and there are instances also where it requires legal skill to draw the answers properly and truthfully. Indeed, it is ■quite obvious that the trustee, under that law, occupied a peculiar position. The plaintiff sought to charge him upon his own statement, ifor money, goods, chattels, rights or credits of the debtor, in his hands. 'The proceeding was in substance much like a bill of discovery, and it ■seemed fitting and proper that the trustee should bo allowed to propose ■his answers as in the case of a bill of discovery with the aid of counsel.
The inquiry then is whether a change in this respect is made by the General Statutes, and if so, whether it takes effect upon actions pending when those statutes went into operation.
By the General Statutes, chap. 230, sec. 7, the plaintiff may, before the return day of the writ, and before the trustee has proceeded under •the next section, summon the trustee and pay or tender him his fees as a witness to give his deposition relative to any money, goods, chattels, rights or credits in his hands, of the defendant; and by section 8, the trustee may also, before the return or notice by the plaintiff, give notice to him or his attorney, that he will attend at a time and place named to give his deposition; and by section 18, depositions of other persons may be taken by either party, and provision is made for a trial by jury if upon the depositions it appears that the trustee denies his liability as claimed by the plaintiff. a
If the purpose be to obtain a discovery from the trustee in order to charge him, the same may be said in respect to all other parties who are examined; and, as in other cases, the testimony of other witnesses may be introduced both by the plaintiff and the trustee.
These changes in the law have placed the trial of the issue between the plaintiff and trustee upon much the same footing as the trial of other causes, and have opened the way for abolishing the distinction between the mode of examining trustees and other parties, and therefore we think that the change in the law by which the trustee is to be summoned and paid as a witness to give his deposition, is significant of a purpose to put him upon the footing of other deponents as to the mode of giving that deposition.
If the trustee needs time to prepare his answers to any interrogatory it is within the discretion of the magistrate to give it to him, and we think it would rarely be withheld when it was proper to grant it, and of course his counsel might be consulted.
By the 23d rule of court the answers in depositions to be used both in courts of law and equity, are to be written by the magistrate without the interference of either party, and it is reasonable to suppose that in changing the law so as to.require the deposition of the trustee to be taken, a conformity with this rule was contemplated. If not it is difficult to perceive the reason of so marked a change in the terms.
Upon these views we think that under the General Statutes the answers of the trustee should be written by the magistrate, as in the case of other depositions.
The remaining question is whether the new law applies to actions pending at the time it took effect, this action having been entered April Term, 1867, and the law going into operation January 1, 1868.
Upon examining the new law relating to the trustee process and the act repealing the Revised Statutes, which is chap. 273, we find nothing to indicate a purpose to apply the new enactments to actions pending. On the contrary the provision for taking the trustee’s deposition before the return day of the writ cannot apply to actions already entered in court; and the repeal is made subject to the provisions of the chapter of which it makes part, chapter 273, one of which, section 5, is that the repeal shall not affect any trial or proceeding had or commenced before the time when said repeal shall take effect; but the proceedings in every such case shall be conformed, when necessary, to the provisions of the General Statutes.
Under the same provisions in the Revised Statutes, it has been repeatedly decided that a statute shall have no retrospective action in respect to pending suits, unless the intention to affect them is very clearly expressed.
The clause at the close of sec. 5, that the proceedings shall be conformed, when necessary, to the provisions of the General Statutes; is identical with the Revised Statutes, chap. 130, sec. 5, but the decisions above cited are subsequent to that act, and it is quite evident that this clause is not to be construed as a restriction upon the rule that a statute shall not have a retrospective operation unless the intention that it should have is very clearly expressed, except when the new law necessarily requires that it should have such effect; as when the courts themselves are changed, the terms are altered, and the like. In such cases, indeed, from the nature of the changes the purpose to affect pending suits would be apparent.
In the case before us, there is nothing in the new law that makes it necessary to change the mode of proceeding in pending trustee suits ; and our opinion therefore is that the trustee ought to have been permitted to prepare his answers with the aid of counsel.
The change in this case is not very material, but we cannot say it does not affect the proceedings, and for aught we can see, a decision that should admit this change in respect to a pending suit would establish a principle that would make most of the new provisions applicable; a principle that finds no countenance in the adjudged, cases in this State.