HAMILTON BANK v. HORTON, 68 N.H. 235 (1894)

44 A. 296

HAMILTON NATIONAL BANK v. HORTON Tr.

Supreme Court of New Hampshire Hillsborough.
Decided December, 1894.

In the absence of fraud, wages of the defendant which have been once attached by the plaintiff in the hands of the trustee, and the trustee discharged, may be held in a second suit by the plaintiff on a different cause of action.

FOREIGN ATTACHMENT. Facts found by the court. March 13, 1894, an action was pending between the same parties, including the trustee, who was then discharged. He then had in his hands $12.60 wages due the defendant.

March 15, 1894, the plaintiff brought suit against the defendant upon a new cause of action, and the writ was served upon the trustee March 16. The trustee disclosed $29.10 due the defendant for wages, including the $12.60. Neither suit was for necessaries. The court charged the trustee for $9.10, the defendant filed a bill of exceptions.

Joseph S. Matthews, for the plaintiff.

E. S. H. A. Cutter, for the defendant.

WALLACE, J.

The discharge of the trustee in the first action, terminated that suit so far as the trustee was concerned. There was then nothing to prevent the wages which had been attached in his hands from being paid over to the defendant. A third party could then have attached them and had them applied on his claim. In the absence of fraud, there is no reason why the plaintiff cannot hold the defendant’s wages attached in a second suit on another cause of action after the discharge of the trustee in the first action, in the same manner that a third party could. The trustee was properly charged.

Exceptions overruled.

CARPENTER, J., did not sit: the others concurred.

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