Mannan v. Merritt , 93 Mass. 582 ( 1866 )

Dewey, J.

A creditor cannot by an attachment impeach the validity of the sale by his debtor of articles which are exempt by law from attachment, upon the ground that such sale was fraudulent as to creditors. Rayner v. Whicher, 6 Allen, 292. The articles of household furniture here sold to Martha Manan were strictly within that class. The case differs in that respect from that of Stevenson v. White, 5 Allen, 148, and Nash v. Farrington, 4 Allen, 157, where the court held that the articles sold were not exempted articles, having never been appropriated specially to those uses or held for the particular purposes required to entitle them to exemption from levy of ex ecution.

We see no objection to the competency of the testimony of Hannan’s conversation with Thurston, the attaching creditor, by whose particular direction this property was attached, and her demand that he should restore the property to her. 1 Greenl. Ev. § 180. Bayley v. Bryant, 24 Pick. 198.

None of the rulings excepted to seem to apply to the case of Rothfuchs, unless it be that in which the presiding judge instructed the jury that an officer attaching household furniture of the kind and description testified to in this case was bound to leave one hundred dollars’ worth with the debtor. The case showed sufficiently the character of these articles of household furniture, and that they were within the class exempted from attachment. As these articles fall within the class of articles exempted by Gen. Sts. c. 133, § 32, the court properly instructed the jury that an officer attaching household furniture of the kind and description that this was shown to be was bound to leave at least the value of one hundred dollars with the debtor. There had been no request made to the debtor to select, but the officer seized and removed the same, and subsequently returned such articles as he thought proper, taking upon himself the whole responsibility. He thereby became chargeable to the plaintiff for so much of the same as was exempt by law from attachment.

Exceptions overruled.