186 Mass. 574 | Mass. | 1904
The only question in this case is whether a party adjudged a trustee of the principal defendant in trustee process, properly can pay over the amount in his hands upon a demand made upon the execution within thirty days after the judgment, if the demand is made by the plaintiff in the suit; or whether, in order to protect the trustee in paying, the execution must be put into the hands of an officer and a demand be made by him. The answer depends upon the construction of the statutes. The R. L. c. 189, § 40, is as follows: “If the goods, effects and credits in the hands of a person who has been ad
As an execution is directed to an officer, who alone can give compulsory effect to the judgment of the court, it is difficult to see how anything can be done by any one else “by force of the execution.” To the plaintiff, for his personal action, the execution gives no greater rights than the judgment.
We are of opinion that a demand by an officer under the R. L. c. 189, § 40, is a necessary prerequisite to the protection of the rights of the judgment creditor and the trustee.
Exceptions overruled.