Stockwell v. Silloway

113 Mass. 382 | Mass. | 1873

Morton, J.

These exceptions must be overruled. The plaintiff is entitled to a qualified judgment to enable him to enforce his lien, if it is shown that he has an attachment of either real or personal estate which is not dissolved by the proceedings in bankruptcy. Bosworth v. Pomeroy, 112 Mass. 293, and cases cited.

The answers of the trustee disclosed that he had funds in his hands belonging to the defendant, but that they were claimed by a third person by virtue of an assignment. These answers are a part of the record of the case, and are made by statute conclusive evidence of all the facts stated therein, upon the question whether he is chargeable or not. In the issue on trial in this case, therefore, they were not only competent but the only proper evidence that the trustee had funds, which were attached by the plaintiff unless the alleged assignment was valid.

It was within the discretion of the court to postpone the trial of this case until the question of the rights of the claimant had been adjudicated. Until this was done it could not be determined whether the trustee was chargeable. After the finding of the jury on this question, the record of the case conclusively shows that the trustee is chargeable, and therefore that the plaintiff has an attachment of personal property which entitles him to the qualified judgment. Upon this ground, therefore, independent of the question of the attachment of real estate, the court properly directed a verdict for the plaintiff, and the defendant has no ground of complaint. Exceptions overruled.