253 Mass. 169 | Mass. | 1925
This is an action of contract, commenced by trustee writ in which the Boylston National Bank was summoned as trustee. The writ was served on the trustee on May 6, 1922. The answer of the trustee filed June 15, 1922, and its answers filed March 24, 1924, to interrogatories of the plaintiff, disclose that at the time of the -service of process it had on deposit to the credit of the defendant $5,812.91, and that at the same time it held notes of the defendant aggregating $68,775.26, all payable on demand; that since the service and before answer, on May 6, 1922, demand was made for payment of these notes and the deposit was applied to the partial payment of them. The judge of the Superior Court “found as a fact that no demand had been made on the notes at the time of service of the writ on the trustee,” and on July 7, 1922, ordered the “trustee charged on its answer and on the answers to the interrogatories.” The trustee is before this court on its exception duly saved to the above order of the court.
The exception must be sustained. It was said by Gray, C.J., in Eddy v. O’Hara, 132 Mass. 56, at page 61: “ The trustee in a process of foreign attachment can be charged only for a debt due from him to the principal defendant at the time of the attachment, and which remains justly due from the one to the other at the time of the judgment which determines whether the trustee shall or shall not be charged. The trustee, being a mere stakeholder summoned into a suit in which he has no personal interest, is entitled to the protection of the court under circumstances in which an ordinary defendant might be held hable.” It is provided in G. L. c. 246, § 26: “A trustee may retain or deduct from the
On the facts the case at bar is governed by, and not distinguishable from, Lannan v. Walter, 149 Mass. 14, wherein, at page 15, it is said by Field, J.: “ ‘if before final answer the debtor becomes indebted to the’ trustee ‘on any contract entered into before the service of the writ, the latter shall have a right of set-off, and be chargeable only with the final balance, if one should be due’”; citing Boston Type & Stereotype Foundry Co. v. Mortimer, 7 Pick. 166, Smith v. Stearns, 19 Pick. 20, 25, Nickerson v. Chase, 122 Mass. 296, Eddy v. O’Hara, 132 Mass. 56, 61, and Pub. Sts. c. 183, § 27.
Exceptions sustained.
Appeal dismissed.