Morse v. Towns

Bellows, J.

In the case of Brown v. Heath, Pr., Clarkville Trustee, Coos County, August, 1863, it was decided that the bounty to which a volunteer was entitled,while still in the hands of the town, could not be attached upon the trustee process; and such was the opinion of the Justices of this Court as furnished the Gfovernor of the State, in 1862.

Such a proceeding by which the bounty could be intercepted would obviously be against the policy of the law which empowered towns to offer such bounties to encourage enlistments; and we are fully satisfied with the reasons assigned for the opinions referred to.

But the question, whether the money after it has been paid to the volunteer shall be subject to this process, is a very different one. The object of the law is to'encourage enlistments by the payment of a bounty to the volunteer, leaving him to dispose of it in any way he pleases, after it has been once received; either for the payment of his debts, the support of his family, or in any way he may deem best. There is, then, nothing in the policy of the law that imposes any restrictions ‘ upon the volunteer as to the mode of using this bounty; and if he chooses to invest the money in property which, by the laws of the State,¡is liable to attachment, or to place it where the trustee process would ordinarily reach it, we see no ground on which it can be holden that such property or fund is exempt from attachment.

It is urged, that, to carry out the policy of the law, the doctrine of Brown v. Heath & Trustee ought to be applied to this fund wherever it can be traced or identified; but we think it is sufficient that the fund is protected until it reaches the hands of the volunteer. When it does, it is practically in his power to apply it for the support of his family, in obtaining a homestead, purchasing provisions or other necessaries, from time to time, which are exempt from attachment; or, on the other hand, in applying it directly to the payment of his debts, or in the purchase of property liable to be taken for them.

*188 Had tbe law provided that this bounty should be applied to the support of the soldier’s family, or was such an implication fairly to be made from it, a different view ought perhaps to be taken, but no such provision is found; on the contrary, the bounty is given equally to those who have and those who have not families, and there is nothing from which any restriction on the absolute freedom of disposal by the volunteer. can be inferred. Besides, the very serious difficulties in the amplification of the rule of exemption urged by plaintiff’s counsel, engrafting as it would upon our attachment laws an important addition to the property already exempted, is a strong argument against the construction contended for.

It is also urged that this fund must be regarded as in the hands of the trustee for the use of the wife and family of the volunteer, and that, therefore, it is not subject to this process. But we think, that, by placing the money in the hands of the wife to be expended for the support of the family, the wife acquired no interest in it, but that it was still the money of the husband. Neither would its character be changed by the act of the wife in depositing it with the trustee.

The trustee must be charged.