Redington v. Dunn & Trustee

24 N.H. 162 | Superior Court of New Hampshire | 1851

Gilchrist, C. J.

On the 29th of May, after the service of the process in this case, the plaintiff had no right to the earnings of the defendant which had accrued for fifteen days previous, or which should accrue subsequent to that time. It does not appear from the disclosure, that on the 29th of May the trustee was indebted to the defendant, and the question in the case relates to the defendant’s earnings subsequent to that day. If the service on that day is still valid, it is clear that the trustee must be discharged, for such is the express provision of the statute. If it was vacated by the agreement made between the plaintiff and the trustee, the latter is chargeable for the amount of the defendant’s labor from the 29th of May to a period fifteen days prior to the 4th day of July.

The object of the statute is to exempt from attachment, with some limitations, the personal earnings of the defendant in as unqualified a manner as certain household furniture is exempted. The law does not intend that the fund, upon which in many cases the party relies for his subsistence, shall be applied against his will to the payment of his debts. He is not to permit a debt to accumulate for an indefinite period against the trustee, for that would be evidence that he did not need the proceeds of his daily-labor for his immediate subsistence. But the law has fixed on the period of fifteen days as a reasonable time for such accumulation, and for whatever has accrued prior to that time the trustee is, under ordinary circumstances, chargeable.

It is the service of the process on the trustee which fixes the time after which the earnings of the defendant shall not be held. The whole of the 9th section looks to that, and to that alone. The section has no reference to the service of the writ upon the defendant. As regards kind, it is an ordinary writ of summons; in relation to the trustee, it is a process of foreign attachment. No person summoned as trustee, the section declares, shall be charged “on account of any labor performed by the debtor” after service of the process. If then the service be complete upon the trustee, and if the object be to carry out the intent of the statute, it would seem that the defendant, so far at least as regards the plaintiff, has a right that his earnings subsequent to the service should be free from liability to attachment, without his assent. Otherwise, it will always be in the power of the plaintiff after the service, by notifying the trustee that the attachment is vacated, and at the same time making a new service, to obtain a control over the earnings of the debtor which the statute did not intend he should possess. If the service on the 4th of July was valid, it deprived the statute of any force on this point. It appropriated the defendant’s earnings without his assent. We cannot hold it to be valid, because we think that such a conclusion would conflict with the law, and therefore our opinion is that the trustee cannot be holden by virtue of it.

Trustee discharged.