Cobb v. Rice, 130 Mass. 231

Cobb v. Rice

130 Mass. 231 | Mass. | 1881

Morton, J.

The defendants, Sarah J. Winslow and Julia E. Ayres, delivered the property involved in this suit to the Chief Commissioner of Police of Rotterdam, who, with their consent, placed it in the hands of the American Consul at Rotterdam. The fair conclusion from all the evidence is that this was done voluntarily; and that it was put in the hands of the Consul, not as the agent or trustee of the said defendants, but to be held for the real owner. The Consul transmitted the property, in February 1876, to the plaintiff, who was then the Mayor of Boston. After it came to his hands, it was claimed by the defendants, Mrs. Winslow and Miss Ayres, and also by the other defendants, who are the assignees in bankruptcy of Ezra D. Winslow. The plaintiff has no claim upon or interest in the property. It came into his possession rightfully. He is a mere stakeholder, exposed to conflicting claims by different persons claiming to be the owners of the property, and his proper remedy is by a bill of interpleader.

*234Several of the points taken by the defendants Winslow and Ayres in the argument in this court are not now open to them, By going to a hearing upon the merits, they waived formal and technical objections, which should have been taken by demurrer. Of this character are the objections that the bill is irregular in waiving the oath of the defendants, and in not annexing an affidavit that there is no collusion between the plaintiff and either of the parties. If the defendants wished to rely upon those objections, they should have demurred. Of the same character are the objections that the plaintiff does not offer to bring the property into court, and that he does not set out the claims of the respective defendants; and there is the additional answer that those objections are not founded on facts, as the bill does offer to bring the property into court, and sufficiently sets out that the several defendants make claim upon the property.

Of a similar character is the objection that the proceedings, after the defendants had interpleaded, were irregular because no replications were filed. If the objection had been seasonably taken, the formal difficulty would have been removed by filing replications; and, by going to a hearing upon the merits, the defendants waived this objection.

The defendants contend that the interrogatories to Julia E. Ayres were improperly admitted in evidence at the hearing, because the right to file interrogatories is confined to suits at law. But the statute expressly permits such interrogatories to be filed in a suit in equity. St. 1862, e. 40, § 1.

The objection now urged to the deposition of Mahlon H. Spaulding, namely, that the cause for taking it was not shown to exist at the time of the hearing, and that it was therefore inadmissible under the Gen. Sts. c. 131, § 28, does not appear to have been taken at the hearing, and therefore we cannot now consider it.

It is also contended that the decree in favor of the assignees of Ezra D. Winslow cannot be sustained, because, at the time of the adjudication and assignment in bankruptcy, the said Winslow was not a resident of this country, and therefore not within the jurisdiction of the bankruptcy court. A sufficient answer to this is, that there is nothing in the case to show that *235Winslow had lost his domicil in Massachusetts. His domicil, being here, continues until he acquires one elsewhere. The evidence clearly shows that, at the time of the adjudication and assignment, he was merely a fugitive from justice, who had gained no domicil elsewhere, and therefore he remained a resident within the jurisdiction of the District Court in this district, and liable to be proceeded against in bankruptcy.

The remaining question is whether the finding of the justice before whom the hearing was had, that the property in dispute belonged to Ezra D. Winslow, should be sustained. Upon a careful consideration of all the evidence, we are of opinion that this finding should not be disturbed. It would not be profitable to discuss the evidence in detail. All the testimony from the witnesses who are disinterested and impartial goes strongly to show that the property belonged to Ezra D. Winslow. The testimony of Mrs. Winslow and Miss Ayres, treating their sworn answers as competent, is not sufficient to overcome the other evidence. The whole evidence by a fair preponderance sústains the finding.

The decree in its substantial parts should, therefore, be affirmed ; but we are of opinion that the part of the decree allowing costs of counsel fees to be taxed as between solicitor and client, to be paid out of the fund, should be reversed. Such costs are allowed in cases where the suit is necessary in order to clear up an ambiguity in a will or other instrument creating a trust. Bowditch v. Soltyk, 99 Mass. 136. But they ought not to be allowed to the losing parties in a case like this, where the only cause of the suit is their unjust claim to property which is not theirs.

Decree accordingly.