Philbrick v. Philbrick

39 N.H. 468

Opinion

Dob, J.

*

The case does not show that the defendant has assented to the arrangement made by Edward Phil-brick and the school district, or that Edward was discharged from his liability to the defendant. If the district should pay Edward the whole of the $2,000, the defendant would have no claim on the district. The original contract between the defendant and Edward is not abandoned, the defendant and the district have not become parties to a new contract, and the district is not liable as trustee.

'It is objected by Edward Philbrick, the other trustee, that any law by which he should be charged would be unconstitutional, as impairing the obligation of contracts, The obligation of contracts would be affected as much by taking any other property out of a trustee’s hands, where the property is held by the trustee under a contract not by its express terms to be performed in this State, as by taking the money due on these notes. The doctrine contended for would exempt from attachment and execution all property of .non-residents, so held in-this State. If this were a proceeding to discharge a trustee from a debt due to the defendant on payment of part of that debt, it would virtually be a process under an insolvent law, and the residence of the defendant would, under some circumstances, be material. But the trustee statute merely provides how a debtor’s property may be attached and appropriated towards the payment of his debts in cases where, the property being in the possession of third persons, it would be inconvenient, difficult or impossible, to reach it by an ordinary attachment or levy of execution. The statute does not in the least impair the obligation of the trustee to pay his debt; it only directs to whom he shall pay it — -that he shall pay it to a creditor of the defendant, without diminishing the defendant’s estate otherwise than by costs which attend all attachments.

Edward Philbrick is chargeable, as trustee, for the balance due on the notes.

Union School District discharged — Edward Philbrick charged.

IWler and Bellows, J.T., did not sit.