Quimby v. Hewey

Fogler, J.

Exceptions by plaintiff to the ruling of the presiding justice discharging the trustee..

The action is assumpsit on an account annexed to the writ. Service was made upon the trustee December 12, 1896, and again February 3, 1897, and again March 4, 1897. The disclosure of the. -trustee, fairly construed, shows that the principal. defendant was employed by the trustee as a night watchman; that nothing was due him by the trustee at the time of the first service; that at the time of the second service there was> due him the sum of $11.86; that there was due him at the time of the last service the further sum of $16.31; and that these respective sums at the times of each service were due from the trustee to the principal defendant as wages for his personal labor for a time not exceeding one month next preceding the service of the process. These sums being respectively less than twenty dollars are exempt from attachment by trustee process and the trustee must be discharged unless it appears that the plaintiff’s suit is for necessaries furnished the principal defendant or his family. R. S., c. 86, § 55, Par. VI; Collins v. Chase, 71 Maine, 434; Haynes v. Thompson, 80 Maine, 125.

The goods charged in the account annexed to the plaintiff’s writ are clearly of the class known as “necessaries.” Attachment of property of the principal debtor in the hands of trustees are wholly regulated, by statute. Hanson v. Butler, 48 Maine, 82. To charge the trustee the attaching creditor must allege and prove every material fact necessary to bring his case within the purview of the statute. Whether-the goods charged in the account sued were furnished the principal defendant or his family is a material and decisive fact in determining whether the trustee shall be charged. That such goods are of the class recognized as “ necessaries” is not sufficient. McAuley v. Tracy, 61 Maine, 523. The plaintiff does not allege, either in his declaration or in an allegation which he might have filed under R. S., c. 86, § 30, which provides that the plaintiff, defendant or trustee may allege and prove any fact material in deciding the question of the trustee’s liability, that the goods charged were furnished the principal defendant or his family, nor does he offer any proof that the goods were so furnished.

The ruling of the presiding justice is correct and the trustee must be discharged.

Hxeeptions overruled.