Homer v. Falconer , 60 N.H. 203 ( 1880 )

The issue was the same whether the defence was made by the defendant or the subsequent attaching creditors. Carlton v. Patterson, 29 N.H. 586; Mathewson v. Powder Works, 44 N.H. 289; Dorr v. Leach, 58 N.H. 18; Emerson v. Emerson, 58 N.H. 413. That issue was, whether the defendant owed the plaintiffs. The testimony offered by the creditors had no bearing on this question, and was properly excluded. The fact that the plaintiffs had property in their hands as security was not a payment of their debt, nor a defence to an action to recover it. Their right to bring this suit and attach property was not taken away by their lien on other property, nor by their purpose to hold it for the benefit of the defendant. Wehle v. Conner,83 N.Y. 231, 238. Satisfaction of their judgment in this case out of the attached property will dissolve their lien on the other, and leave the other to be applied by legal process for the benefit of other creditors.

Judgment on the verdict.

FOSTER, J., did not sit: the others concurred.