Provencher v. Brooks

• Decision Date: 16 March 1888
• Citation: 13 A. 641,64 N.H. 479
• Parties: PROVENCHER v. BROOKS et al.
• Court: New Hampshire Supreme Court

13 A. 641

64 N.H. 479

PROVENCHER

v. BROOKS et al.¹

Supreme Court of New Hampshire. Hillsborough.

March 16, 1888.

Foreign attachment. Issue between the plaintiff and the claimant, Childs. Facts found by the court. December 7, 1885, the defendant, by his deed of that date, in consideration of his then indebtedness to the claimant, and in further consideration "that the said Childs shall furnish and pay for my and my child's board, and pay as much as possible towards whatever other claims may be held against me by other parties," assigned to Childs the wages then due and to become due to him from the trustee for the term of six months. The assignment also contained the following: "And it is furthermore agreed between us that whatever sum, over and above the amount she will have expended, shall remain in her hands at the expiration of the aforesaid six months, she, the said Childs, will return to me." The writ was served on the trustee, February 4, 1886. At the date of the assignment, the defendant was indebted to Mrs. Childs in the sum of $21.50. She took the assignment to secure her for that indebtedness, and for his board, and that of his child, during the next six months. She hired him, and his child boarded with one Kent, to whom she paid $64. She has received of the trustee under the assignment $46.70. The defendant is still indebted to her in a greater amount than the sum due to him from the trustee. She had no purpose to hinder or delay the defendant's creditors, and there was no fraud in fact.

S. D. Lord, for plaintiff. I. L. Heath, for claimant.

CARPENTER, J. The question is whether a provision in a laborer's assignment of his future wages, that they, or a part of them, shall be applied to provide necessaries for himself and his family, is merely evidence of fraud, or fraudulent as matter of law—"conclusive proof of fraudulent intent to defeat creditors." Coolidge v. Melvin, 42 N. H. 510, 522, 530. The question is not touched by Runnells v. Bosquet, 60 N. H. 38. In that case it was found as a fact that the assignment was made without consideration and with fraudulent intent. There is a distinction between assignments of future earnings, and assignments of existing property for such a purpose. In the latter case, attachable property is clothed with a false title,—made apparently the property of another; while in the former nothing passes which a creditor could seize. It stands much like a similar conveyance of property exempt from attachment. It may be, but cannot be presumed to be, fraudulent. Currier v. Sutherland, 54 N. H. 475. If A. conveys his lands or assigns his personal...