Bullock v. Foster , 44 N.H. 38 ( 1860 )

Bartlett, J.

The case raises no question of the existence of a lien, but solely of the correctness of the ruling, that in ease of the existence of a lien and the appointment of a receiver’, the trustee, would be entitled to receive from the proceeds of the property, if sold by the receiver, not only the amount of the debt for which the lien existed, but also the amount due him from the principal defendant on other accounts. Prior to the act of December 12, 1832, personal property subject to a lien could not be reached by trustee process. By that act such property, upon the payment or tender of the amount for which it was so held, might be attached, and the pi’oceeds, after deducting fees, &e., were to be applied to the payment of the amount tendered, and the residue to the payment of the judgment, &c.; or the person holding such property might be summoned as trustee, and upon such payment or tender the court were to order the trustee to deliver over the property to the attaching officer, to be held by him in the same manner as if it had been attached on mesne process, provided that such trustee should be entitled to receive of the officer his reasonable expenses, occasioned by his being so summoned, &e. This mode of procedure was attended with risk of loss to the plaintiff’ as the property might prove of less value than the amount paid to discharge the lien. To remedy this the act of J une 30, 1841, provided that in case the trustee should have in his possession personal property subject to lien, &c., the court might appoint a receiver to dispose of it, if a greater sum than the amount so due could be obtained for it, and, after paying the amount of such lien, &c., to apply the residue to the payment of the debt and costs recovered by the plaintiff, &c. Our statutes have adopted a similar policy in foreign attachment, where the trustee holds specific articles not subject to a lien ; Rev. Stat., ch. 207, sees. 11-15; and also in case of the direct attachment of chattels subject to lien. Rev. Stat., ch. 184, secs. 15,16. In neither of these cases is there any general right of set off. Allen v. Mcgguire, 15 Mass. 490; Brewer v. Pitkin, 11 Pick. 301; Allen v. Hall, 5 Met. 263. See Bailey v. Ross, 20 N. H. 304; Jarvis v. Rogers, 15 Mass. 414; Fling v. Goodall, 40 N. H. 214 ; Weeks v. Robie, 42 N. H. 321. Section 16 of chapter 208 of the Revised Statutes is hut a revision of the pi’ovision in the act of 1841. Briggs v. Walker, 21 N. H. 78. The provisions of this section are too explicit to allow us to resort for aid in their construction to analogies drawn from other parts of the statute; and the whole subject is so fully discussed in Briggs v. Walker, which is recognized in Hills v. Smith, 28 N. H. 378, that we do not feel called upon to examine it further at the present time. The plaintiff’s exception must be sustained.