152 Mass. 64 | Mass. | 1890
The plaintiffs recovered judgment against Rickenberg on December 23, 1887. The claim on which the judgment was recovered, became due- and payable before the first publication of the notice of the issuing of the warrant in the proceedings in insolvency, which were instituted by Rickenberg on April 7, 1886; and although this claim was provable against the estate of Rickenberg in insolvency, it was not proved. The debt due from the Traders’ National Bank to Rickenberg, which the plaintiffs seek to reach and apply to the payment of their judgment is “ property and estate ” acquired by Rickenberg subsequently to the time of the first publication of the notice of the issuing of the warrant. Pub. Sts. c. 157, § 83. The plaintiffs
It is conceded, as we understand, by the counsel for the plaintiffs, that but for the provision of the Pub. Sts. c. 157, § 83, the debt due from the bank to Rickenberg could be attached by the plaintiffs by trustee process, and it must be inferred from the allegations of the bill that this debt is of such a nature that it could be attached by trustee process, by any person who has a similar cause of action on which he has a right to attach the property of Rickenberg. If § 83 of c. 157 of the Pub. Sts. is constitutional and valid, the plaintiffs cannot attach this debt in a suit on their judgment “by trustee process or otherwise”; if that section is void in its application to non-resident creditors, the plaintiffs can attach this debt by trustee process; under either view, there is no jurisdiction in equity. The statute prohibits certain remedies to these plaintiffs for the collection of a debt due from an insolvent debtor in Massachusetts who has obtained his discharge. An attachment in equity is within the prohibition, and the statute cannot be avoided by a change in the form of proceedings. Maxwell v. Cochran, 136 Mass. 73.
This suit cannot be regarded as a method of levying an execution on a judgment obtained at law. Jurisdiction in equity to entertain bills like this is expressly limited to bills to reach and apply property “ which cannot be come at to be attached or taken on execution in a suit at law.” Pub. Sts. c. 151, § 2, cl. 11. This means property which is of such a nature that it cannot be attached or taken on execution in a suit at law. We must hold that the same limitation attaches in this Commonwealth to suits brought under the general equity jurisdiction of the court to collect a judgment obtained at law. If the property in its nature is attachable by trustee process, a suit in equity cannot be maintained to reach and apply it in payment of a debt of a special kind, which by the statutes cannot be. collected by an attachment of this property either “ by trustee process or otherwise.” Dehts can be attached by trustee process in actions at law only, and only certain actions at law can be begun by trustee process. Pub. Sts. c. 183, § 1. Legal causes of
We must decline to consider whether the Pub. Sts. c. 157, § 83, are inconsistent either with the Constitution of the United States or with the Constitution of the Commonwealth, because a determination of these questions is not necessary to the decision of the case. Bill dismissed.
