Butman v. Holbrook

The opinion of the Court was drawn up by

Whitman C. J.

By the Rev. Stat. c. 148, § 34, it is provided, that “ If the debtor shall as aforesaid disclose any personal estate liable to be levied upon by said execution, the creditor shall also have a lien thereon, or so much thereof as the justices in their record shall judge to be necessary for the term of thirty days.” And the debtor is not to dispose of any property on which the creditor has such lien within that time. If he should, he is to lose all benefit from the certificate granted by the jnstices. The debtor in this case disclosed, that he had in his possession a five dollar bank bill and a dollar in silver. By the Rev. Stat. c. 117, § 3, it is provided that these may be taken on execution. The lien therefore attached to the bank bill and silver in favor of the creditor, and they could not be disposed of otherwise, within the thirty days next after the disclosure, without working a forfeiture of all benefit from his certificate. The statement is, that, after the disclosure, and before he was admitted to taire the oath, he paid away the bank bill to the justices and his attorney. This brings the case within the literal import of the statute to work a forfeiture.

But it is urged, that in his disclosure, he stated that he had the bank bill and silver dollar for the purpose for which it was applied, and that it would be unreasonable, so to construe the statute, as to deprive the debtor of the means of defraying the expenses of obtaining a discharge under the act for the relief of poor debtors. There is some force in this position, perhaps, but not enough to authorize us to disregard the literal import of the statute. Counsel sometimes, if eminent especially, exact large fees for services, sometimes not very arduous. If we might allow a debtor to retain one sum to remunerate his counsel, we might another, and this might amount to a large sum, and open a door to abuse and malpractice. The debtor might collude with some such attorneys as the present provis*427ions for their admission may introduce into the profession, and agree to pay a large sum, with the hope, or an understanding, that it would in part be afterwards restored to him. The fees, payable to the justices are small as provided by statute, such as a debtor might well pay before making a disclosure, so that' he might well guard himself against liability to be injured by-the construction we put upon the statute.

Defendants defaulted.