The money attached in the trustee suit was not Morgan's money. The attachment gave him no right to it or to its possession, but merely a statutory lien, with the right to hold Morgan's interest in it, provided he should obtain judgment and seasonably sue out and levy an execution. Baker v. Beers, 64 N.H. 102, 104. Broadhurst, by paying the money to Morgan before it had been judicially determined that Parsons was indebted to him, was not thereby discharged of his indebtedness to Parsons. Parsons's right to enforce payment was merely suspended during the pendency of the trustee process, and when by Morgan's neglect to complete the service of his writ the attachment was dissolved and suit discontinued, his right to demand and recover the money of Broadhurst was as complete as though it had not been attached. It was against this liability that Morgan promised to indemnify Broadhurst; and because of his neglect to protect him, the latter is entitled to recover his damages, assessed at $9.62.
Broadhurst was under no legal obligation to permit Morgan to undertake the defence of the Parsons suit and await the result of litigation, at least without being secured against the costs of litigation. It is not suggested that there was any defence to the suit? and none is perceived. If Parsons could not recover of Broadhurst, it is clear the latter was not chargeable as trustee.
Whether justice required that the declaration should be amended, *Page 482 was a question of fact to be determined at the trial term. Sawyer v. Railroad, 62 N.H. 135.
Counts in case and assumpsit may be joined in a declaration on a single cause of action. Rutherford v. Whitcher, 60 N.H. 110.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.