Head v. Clarke

45 N.H. 287

Opinion

Bartlett, J.

It having been alleged at the hearing before the magistrates, that John S. Lamprey, at the time of his arrest, and after-wards, had certain property not exempt from attachment, if he had made no conveyance of it before the hearing, it would have been the duty of the magistrates to require him to assign his interest in it to the plaintiffs. R. S. ch. 200, sec. 5. The fact, that the property belonged to him individually, did not exempt it from attachment upon a debt due from the firm of winch he was a member, and if the assignment might be ineffectual to hold the property against his individual creditors, yet " the duty to require the assignment does not depend on the fact, that the debtor has an assignable interest, or on the question, what, if any, will be the effect of the assignment.” Sheafe v. Laighton, 36 N. H. 245 & 6. If the conveyances to Lee were invalid as against such an assignment, no reason exists why it should not have been required, for the creditors would have taken only the interest of JohnS. Lamprey; if, however, these transfers were valid, then by his voluntary act Lamprey had, after his arrest, disabled himself from making the assignment required'by the statute, and this was equivalent to a refusal to make it. In either view, the oath was administered to him in violation of the provisions of the statute and is insufficient to satisfy the condition of the bond. Harding v. Butler, 8 Shepl. 194. See Banks v. Johnson, 12 N. H. 451; Parker v. Staniels, 38 N. H. 251; Bunker v. Nutter, 9 N. H. 554; Downer v. Hollister, 14 N. H. 125; Stone v. Tilson, 1 Appl. 265; Hobbs v. Fogg, 6 Gray, 254.

There must be

Judgment for the plaintiffs.