120 Mass. 86 | Mass. | 1876
A case stated in an action at law cannot be heard or reserved by a single justice of this court, but is within .the exclusive jurisdiction of the full court. The provision of the Rev. Sts. c. 81, § 13, reenacted in the Gen. Sts. c. 112, § 5, has not been modified in this respect, as it has in regard to demurrers at law and to all proceedings in equity. Sts. 1852, c. 312, § 23 ; 1859, c. 237, § 1. Gen. Sts. c. 129, § 64 ; c. 113, § 6. Tufts v. Newton, 119 Mass. 476.
The report might be treated as merely superfluous, and the case heard upon the statement of facts agreed, but for the more serious objection that this statement, made for the purpose of determining the question whether the trustees shall be charged oi
Report dismissed and statement of facts discharged.
The statement of facts was then signed by the trustees also, and the case was argued by the same counsel.
The alleged trustees, at the time of the service of this process upon them, were not debtors of the principal defendants. They did not receive the property in their hands from the defendants, but from Sandford, Soule & Co., who were themselves debtors of the defendants. The property was not the property of the defendants when it came to the hands of the trustees. By the terms of the indenture of trust, under which the trustees received the property, nothing was to be paid to the defendants and the other creditors of Sandford, Soule & Co., until all the property had been disposed of and converted into money and the trust fully executed. Then, and not before, the proceeds, after deducting all charges and expenses of executing the trust, were to be divided among the defendants and the other creditors of Sandford, Soule & Co. Until that time, at least, the defendants had no right of action against the trustees, and no legal right or interest in any part of the funds in their hands If the defendants could have compelled in equity the executior of the trust, a merely equitable right is not attachable by th< trustee process. Folsom v. Haskell, 11 Cush. 470. Field v Crawford, 6 Gray, 116. Hoyt v. Swift, 13 Vt. 129. Perry v. Thornton, 7 R. I. 15, 17. Brandon on Foreign Attachment 28, 29.
As the alleged trustees had, at the time of the service of the writ, no goods, effects or credits of the principal defendants, there is no occasion to consider the effect of the assignment made by the latter to the claimant. Trustees discharged.