Opinion
Decided October 4, 1901.
An order for the payment of money, made and accepted in good faith, is valid as against a subsequent attachment of the funds in the hands of the acceptor by a creditor of the assignor.
FOREIGN ATTACHMENT. Issue between the plaintiffs and the claimant. Trial by the court, and case transferred from the May term, 1901, of the superior court by Peaslee, J.
The writ was served upon the trustee, February 26, 1898. A verdict was found against the defendant in March, 1900. The trustee's disclosure showing that he owed the defendant was filed in October, 1899. After the rendition of the verdict the claimant moved for and was granted leave to appear as claimant of the funds in the hands of the trustee. Up to this time the plaintiffs had no information of the claim so set up.
At the trial of the issue between the plaintiffs and the claimant, it appeared that in July, 1897, the claimant had a claim against the defendant which he tried to collect, and that thereupon the defendant gave him an order on the trustee as follows: "Nashua, N.H., July 19, '97. Mr. F. D. Cook. Please pay to H. A. Cutter when due the am't of last payment on plumbing contract, Cortland st. job, am't being sixty-six and 25-100 dollars ($66.25). C. A. Voter Co. V." Across the face is written: "Accepted. F. D. Cook, July 19, 1897." Subsequently the claimant brought suit in Voter's name against Cook to recover the claim represented by the order, and recovered judgment in June, 1898. In that suit the claimant's name was indorsed on the writ as plaintiff in interest.
The court discharged the trustee, and the plaintiffs excepted.
Wason Moran, for the plaintiffs.
Henry A. Cutter, for the claimant.
No fraud appearing as to the defendant's order to the claimant and its acceptance by the trustee, by their subsequent attachment of the credits alleged to be due the defendant from the trustee the plaintiffs acquired a lien only upon the defendant's then existing interest in those credits, and can hold only what the defendant himself could recover if the present suit were brought by him. Upon familiar principles, this would be nothing. For recent decisions directly in point, see Marsh v. Garney, 69 N.H. 236, 237, and Pollard v. Pollard, 68 N.H. 356, 357. See, also, Corning v. Records, 69 N.H. 390, 396, 397.
Exception overruled.
All concurred.