Wooster v. Page , 54 N.H. 125 ( 1873 )

Foster, J.

The question raised by this case is very simple, and easily disposed of.

The statutory exemptions of property from attachment are uniformly limited to specific chattels. Gen. Stats., ch. 205, sec. 2; Laws of 1871, ch. 30.

The only exceptions that occur to us are the exemption from attachment by the trustee process of pension and bounty money, and the wages of the debtor and his family in certain cases. Gen. Stats., ch. 230, secs. 47, 48.

Until the revision of 1867, the laws did not specifically exempt bounty money; but prior to that time, in the case of Brown v. Heath, 45 N. H. 168 (3 Am. Law Reg., N. S., 125), it was decided that the bounty to which a volunteer was entitled, while still in the hands of the town, could not be attached upon the trustee process; — and such was the opinion of the justices of this court, furnished the governor of the state in 1862.

This exemption was placed solely on the ground of public policy, and was prompted by the exigencies of the war, which required the offer of bounties as an encouragement to enlistments.

In a subsequent case it was held, that the exemption was restricted to the money still in the hands of the town from which the bounty was due, and that it did not extend to the fund after it had come into the hands of the debtor; concerning which it was said that the policy of the law is sustained if the fund is protected until it reaches the hands of the volunteer. “ When it does, it is practically in his power to apply it for the support of his family in obtaining a homestead, purchasing provisions or other necessaries from time to time, which are exempt from attachment; or, on the other hand, to apply it directly to the payment of his debts, or to the purchase of property liable to be taken for them.” Morse v. Towns, 45 N. H. 185. To the same effect is Manchester v. Burns & Trustee, 45 N. H. 482. The opinion in the latter case and the authorities there collected are decisive of the present.

When the debtor’s household furniture was consumed, the property exempt from attachment was gone. It was doubtless a great misfortune, but it was one of those misfortunes for the relief of which the legislature has made no provision. It is the furniture, and not the avails of it in another form, which is protected. When the property is consumed, it is no longer household furniture in the possession of the debtor, nor did it become household furniture of the debtor in the hands of the insurance company. The supposed trustees had no specific chattels of the defendant in their hands, nor were they his debtors for any wages due him or his family for personal labor. What is in the hands of the insurance company belonging to the defendant is money, having no ear-mark by which it may be distinguished from any other money, and not derived by any process of transmutation from the ashes of the defendant’s goods; and hence the exemption which before existed by statute cannot follow and appertain to this indebtedness of the insurance company.

In Morse v. Towns & Trustee, before cited (the hardship of which would seem to have been quite as onerous as is that of the present case), it appeared from the disclosure of the trustee that Towns, having enlisted and received from the town of Pembroke a bounty of two hundred dollars, went away to the wars leaving the money with his wife for the support of herself and their two children. The wife used a part of it, and of the rest put into the hands of the trustee one hundred and fifty dollars, to be returned from time to time as needed for the support of the family ; and for this sum the trustee gave her his note, payable to her or her order. The trustee stated that he took the money expressly as the bounty money of the husband, and that the wife had no other means of support. The trustee was held chargeable, on the ground that the bounty having been paid over to the volunteer was no longer bounty, and as such exempt, but was simply money not exempt.

The cases cited by the plaintiff’s counsel fully sustain his position. Most of them are reviewed in the opinion in Manchester v. Burns & Tr. And the recent case of Paul v. Reed & Tr.., 52 N. H. 136, is in harmony with the argument upon which this opinion is based.

The agreed case states that the insurance company “ is indebted to the defendant in the sum of five hundred dollars.”

We therefore assume that the proper proofs of loss and whatever else may have been required on the part of the insured have been furnished, and that there is no contingency or uncertainty pertaining to the demand of the defendant upon the insurance company.

Trustee chargeable.