Howell v. McDowell

• Decision Date: 05 November 1885
• Citation: 1 A. 474,47 N.J.L. 359
• Parties: HOWELL v. MCDOWELL.
• Court: New Jersey Supreme Court

1 A. 474

47 N.J.L. 359

HOWELL

v. MCDOWELL.

SUPREME COURT OF NEW JERSEY.

November 5, 1885.

Case certified by the Essex circuit.

Frank E. Bradner, for plaintiff.

Frederick T. Fish, for defendant.

BEASLEY, C. J. There is but a single question to, be settled in this case, which is whether wages will pass to a receiver appointed according to the statute, under proceedings auxiliary to an execution. The debt in question accrued under a building contract, wherein it was agreed that the plaintiff would purchase the materials for certain buildings and employ the requisite labor, the bills for which were to be paid by the defendant; the plaintiff stipulating to give, in the language of the agreement, "such personal supervision as shall be necessary to execute the work in a good and workman-like manner by July 1st, with the greatest economy and dispatch, and shall receive as compensation for his services seven per cent. on the entire cost." The money thus earned by the plaintiff was plainly wages or compensation for his personal labor. The inquiry therefore is, as above stated, can wages be subjected to the operation of a judgment by force of the statute, through the medium of a receivership? The language of the act on this subject is far from being explicit, but an attentive comparison of the several provisions has led to the view that it was not the legislative intention to compel the application of wages to the satisfaction of judgments. The twenty-third, twenty-fourth, and twenty-sixth sections of the act respecting executions are the relevant provisions. The first of these sections provides, in general terms, that upon the prescribed petition being presented, the judge to whom the application is made may make an order "requiring the judgment creditor to appear and make discovery on oath concerning his property and things in action, before a commissioner," with a further direction that if, in the original petition, or in one supplementary thereto, it shall appear "that any person owes the said debtor otherwise than for his labor or personal services, or the labor or personal services of any member of his family, or holds money or property in possession or action in trust for him or for his use as aforesaid, the said judge shall make an order forbidding the payment of such debt or transfer of such property or money by or to the said debtor, or any third person, until further order," etc.

The receivership originates by force of the twenty-sixth section,...