Opinion
No. 3049.
Decided April 4, 1939.
Where a judgment creditor assigns his judgment to trustees with no agreement that the judgment will be security for any particular creditors of the assignor the assignees will hold the judgment generally for the assignor or in his right.
In such case, the assignees are chargeable as trustees in trustee-process by a creditor of the assignor.
TRUSTEE PROCESS. The fund attached was a judgment which the principal defendant obtained against Bartis and wife and which he had assigned to the trustees, Guertin and Leahy, who had been his attorneys in the litigation resulting in the judgment. The attachment having been made before the judgment was collected, it was agreed by the plaintiff that the deputy sheriff might proceed with the collection, which the plaintiff facilitated by the discharge of its attachment, the other parties agreeing with the plaintiff that after the deputy sheriff had paid Guertin and Leahy for their services and expenses, and reserved his own fees, the balance, which amounts to $805, should be held for disposition in accordance with the outcome of the proceedings here.
According to the case reserved and transferred without ruling by Burque, C. J., the assignment was complete and unlimited upon its face, but under it the trustees were entitled to the sum that has been paid to them, as was the deputy sheriff. The trustees claim nothing more in their own right, but do assert the right to apply the balance to certain debts of Markarian due to other clients of the trustees. These other clients have no attachments and were not named in the assignment. The plaintiff claims the balance by virtue of its attachment.
James A. Broderick and Maurice A. Broderick (Mr. Maurice A. Broderick orally), for the plaintiff.
Wason, Guertin Leahy (Mr. Guertin orally), for the trustees.
Cases where no rights of attaching creditors are involved (Stewart v. Lee, 70 N.H. 181; Thompson v. Emery, 27 N.H. 269) are of no assistance. Nor are cases involving the assignment of the assignor's whole interest (Jordan v. Gillen, 44 N.H. 424; Baker v. Dads, 22 N.H. 27). As to the balance of the judgment, the trustees claim no interest of their own. Therefore they hold in trust for somebody. If the assignor and the assignees had contracted that the judgment should be security for particular creditors of the assignor other than the assignees and the deputy sheriff, their intention might have been executed by the court. Danforth v. Denny, 25 N.H. 155. But as the matter stands, the trustees must be taken to hold the balance generally for the assignor or in his right. No authority appears to have been given by the assignor for payment of this sum to any particular creditors, and the trustees could not discharge themselves by such payment. Leeds v. Sayward, 6 N.H. 83; Spinney v. Company, 25 N.H. 9. The trustees are chargeable in the present proceedings.
Case discharged.
All concurred.