79 Me. 227 | Me. | 1887
No view that can be taken of this case, on its. merits, makes the bill maintainable.
In this case there is no third party,— no equitable trustee. And from the facts alleged, we do not see how there can be any.
If the clerk were made such party, evidently he could not be holden. He has been acting merely as the hand of the court, and not for himself. He should not be subjected to the risk and expense of a litigation. Nor does it follow that he would be holden even if acting in an individual capacity merely. We have judicial notice, from another case
It is impossible to make the court itself a party by its being an official depositary of the fund. The statute relied on as furnishing a remedy, cannot possibly accomplish such a thing— and was never intended to.
The result of the matter simply is, that the court has in'its official possession an amount of money which can be surrendered only when the court is satisfied upon proper process, affecting proper parties, who the true owner may be. Upon no facts indicated in the case can this complainant obtain it. The complainant probably missed his own interests in procuring a sale of the property before its full value was absorbed by the lien ; or, in selling more of it than was necessary to protect himself at the time of the sale — more in value than the amount of his lien.
Exceptions overruled.
Collins v. Blake, ante page 218.