Spencer v. Blaisdell

4 N.H. 198

Opinion

By the court.

If this plaintiff must be considered as the mere servant of his father in the sale of the cattle, it is very questionable, whether this action can be supported. 1 Chitty’s Pl. 5; 1 N.H. Rep. 292; 1 H. Bl. 84.

But we are inclined to think that the case shows a sufficient interest in the plaintiff to enable him to maintain the action. Whatever remained after the children were supported until the father should send for them was given to the plaintiff, who had not only the possession of the money, but an interest in it. And it seems to us that the plaintiff is entitled to recover unless the defence which is interposed shall be found to be a good answer to the action.

This defence is, that the bills which the defendant took from the plaintiff, have, since he received them, and Before the commencement of this action, been attached as the property of Benjamin Spencer, the father.

We entertain no doubt that between this plaintiff and the creditors of Benjamin Spencer, the property in these bills must be considered as in Benjamin Spencer, the father. The money was raised by a sale of his property and was to be applied to the support of his family. The plaintiff was an agent of his father, and the gift of the surplus to the plaintiff by the father was as against creditors altogether void. 3 N. H. Rep. 55, Everett v. Reed.

It only remains to enquire whether bank bills can be legally attached.

It is well settled that mere choses in action are not capable of being seized and sold upon execution. 7 Mass. Rep. 438, The Maine Fire and M. Insurance Company v. Weekes; 9 Johns. 96, Denton v. Livingston; 1 Cowen 240, Ingalls v. Lord ; 17 Johns. 351, Bogert v. Perry ; 4 Johns. 41 ; 9 Mass. Rep. 537, Perry v. Coates.

And it. has been made a question, whether money could be seized upon execution. 9 East, 48, Knight v. Briddle; 4 East, 510, Fieldhouse v. Croft; 1 Pick. 271, Knowlton v. Bartlett.

But the better opinion seems to be that money may be seized upon an execution. 1 Cranch, 133; 12 Johns. 220; 5 ditto 167; 12 ditto 395, Holmes v. Nuncoster.

And bank bills are treated as money. 12 Johns. 220, Handy v. Dobbin; 12 ditto 395; 1 Burr. 457; 3 D. & E. 554, Wright v. Reed; 7 Johns. 470, Warren v. Mains; 13 East, 20; Pickard v. Banks; 1 Niel Gow 121, Saunders v. Graham.

It is very clear that whatever may be seized and sold on execution may be attached and we are of opinion that there must be

Judgment on the verdict.