Daniels v. Marr , 75 Me. 397 ( 1883 )

Virgin, J.

We are of the opinion that the exceptions must be sustained.

The disclosure admits the trustee to have had actual possession of the defendant’s mare which was worth ten to twenty dollars more than the sum due on the mortgage. It does not state that she was in anywise exempt from attachment; nor has any suggestion of exemption been made by the trustee or claimed by the defendant. Had such' a fact existed and been shown the trustee could not be charged. Staniels v. Raymond, 4 Cush. 314, 317. The admission makes out a prima facie case of changeability which has not been overcome.

This case is not altogether unlike an attachment by trustee process of money due from a trustee to a principal defendant for personal labor. If the trustee, after disclosing the indebtedness, would discharge himself, he must further disclose that the indebtedness accrued for personal labor performed during the month next preceding the service of the writ. Lock v. Johnson, 36 Maine, 464; Haynes v. Hussey, 72 Maine, 448. If the officer had attached the mare, the debtor could not have maintained trespass against the officer by simply proving the attachment, and omitting to show any facts tending to prove she was exempt. Colson v. Wilson, 58 Maine, 416.

The trustee having disposed of the mare after service of the writ and before the disclosure, no motion for a decree was necessary under the provisions of E. S., c. 86, § 50; Stedman v. Vickery, 42 Maine, 132, 136. He must therefore be charged for the difference between the value of the mare (which he cannot object to calling §50 since he has prevented the plaintiff from redeeming) and the sum due on the mortgage.

Exceptions sustained.

Trustee charged for §20.

Appleton, C. J., Walton, Peters, Libbey and Symonds, JJ., concurred.