McDaniels v. Morton

Aldis, J. We think the decision of the county court in discharging the trustees, may well be sustained upon two grounds. I. At the time the writ was served upon the trustees, they were indebted to the defendant only to the amount of nine dollars [103] and twenty cents. The trustee discloses that it was his custom to pay the defendant whenever he had earned ten dollars. It does not appear upon the report that the amount due from the trustee ever exceeded ten dollars at one time. This fact should appear affirmatively upon the report. We are not at liberty to pronounce the judgment of the court below erroneous, when it may have been founded upon the fact that the trustee was never in debt to the defendant to the amount required by statute to make him liable. It is urged that the earnings of the defendant after the service of the writ would increase the nine dollars and twenty cents then due to a sum much beyond the requisite amount. Unquestionably, if they had not been paid to the defendant as often as they came to ten dolíais; but they were so paid. In Carr v. Fairbanks & Co. Trustees of Brusat, 28 Vt. 806, it was decided that a trustee not indebted in the sum of ten dollars when the writ was served, might lawfully pay the principal debtor for his earnings thereafter and not be liable, provided at no time he became indebted to an amount exceeding ten dollars, though the mutual dealings afterwards would have increased the debt beyond the ten dollars, if there had been no payments. This decision was prior to the law of 1856, and would decide this case without reference to that statute. II. The act of November, 1856, exempts the personal earnings of debtors accruing to them after the service of the trustee writ. It is claimed that this suit was brought before the passage of the act, and is therefore not subject to its provisions, as the act applies only to suits “ thereafter brought.” The writ was dated October 27, 1856, (prior to the act;) it was served February 26, 1857, (after the act;) the commissioner is unable to determine when it issued, whether before or after the enactment of the statutes. The time the writ was actually issued must determine when the suit was brought. Its date is prima facie evidence to show when it was issued. But in this ease the length of time that elapsed between its date and service (four months,) and the fact that the attorney who made it (Mr. Thrall,) is unable to say that it was made at its date, but says that it was not then put into the hands of the officer, [104] tend to, show that it was not issued at its date. With these conflicting facts, and with the fact reported by the commissioner,, that he cannot determine when it was issued, it does not affirmatively appear that the suit was "brought before, the 14th of November, A. D. 1856, the time the act was passed ; and without this it does n ot appear that there is error in the judgment of the court below. All presumptions are to be made in favor of the judgment. We never presume error — or facts necessary to establish error. On this ground, therefore, we feel required to affirm the judgment. Judgment affirmed.