140 Mass. 271 | Mass. | 1885
The remedy which the statutes furnish to a creditor, by way of trustee process, is subject to the express statutory limitation, that “ the answers and statements sworn to by a trustee shall be considered as true in deciding how far he is chargeable, but either party may allege and prove any facts, not stated nor denied by the trustee, that may be material in deciding that question.” Pub. Sts. c. 183, § 17. In construing the similar provision in earlier statutes, it has been held in several cases that facts stated upon information and belief, in the answers of a trustee, are to be conclusively taken as true; and this is so, even though an adverse claimant has appeared in the case to maintain his right. Clinton National Bank v. Bright, 126 Mass. 535, and cases cited. Nor can a plaintiff be allowed to put interrogatories to the person summoned as trustee, with a view merely to contradict or impeach his testimony. Nutter v. Framingham & Lowell Railroad, 131 Mass. 231.
Nor can the bill be maintained under the Pub. Sts. c. 151, § 2, cl. 11, to reach and apply property which cannot be come at to be attached. The property in question is such as in its nature can be come at to be attached, and the trustee process is the proper remedy for that purpose. Pub. Sts. c. 183, § 22. Wheeler v. Bowen, 20 Pick. 563. Boston Bank v. Minot, 3 Met. 507. Vantine v. Morse, 104 Mass. 275. The plaintiff’s difficulty is, that, in pursuing this appropriate remedy, he encounters the oath of the trustee upon the vital point; but this does not bring his case within el. 11 of the Pub. Sts. c. 151, § 2, which stands and must be construed with the Pub. Sts. c. 183, §§ 17, 22, already referred to, and which was not designed to enable a creditor to evade their effect by resorting to another form of remedy, under which he could contradict the oath of the administrator.
Nor can the bill be maintained as a bill for discovery. It is brought primarily for relief, and incidentally for discovery, and, not being maintainable for relief, cannot be maintained for discovery. Moreover, the St. of 1883, c. 223, § 10, provides that an answer to a bill shall not be sworn to, except in cases of bills filed for discovery only; and besides, if a discovery were
The remedy of the plaintiff is limited by the statutory provisions respecting the trustee process. Independently of his attachment, his only right to inquire in a court of equity, for his own sole benefit, into the transactions between the defendant and his father, is that conferred by the Pub. Sts. e. 151, § 2, el. 11; and his case does not come within that statute. As an attaching creditor, he is bound by the trustee’s answers.
Bill dismissed.