34 Me. 123 | Me. | 1852
The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by
The plaintiff insists, that the attorney, who appeared for the trustees and filed the exceptions in the District Court, had no authority to appear for him, and that the exceptions should not be entertained.
That question should have been presented and determined in that Court. Nothing is presented for decision in this Court not contained in the bill of exceptions. The exceptions appearing to have been regularly presented and allowed in that Court, and to have been regularly presented here, the trustee becomes entitled to have a decision upon them.
Another objection is, that exceptions will not b,e entertained, because the case was appealable. It does not appear, that the case was appealable. In his argument, the plaintiff states, that the principal was defaulted in the District Court, at May term, 1851, and the adjudication upon the disclosure appears
A further objection is, that exceptions will not lie to a decision of the District Court upon matters of fact, and this case is alleged to come within that rule.
The decisions referred to have reference to cases arising under the sixty-ninth section of the statute authorizing a decision, that goods are holden under a fraudulent and void conveyance, and to cases, in which testimony not contained in the disclosure has been introduced, and not to cases like the present.
It is admitted, that process was served upon the trustee on August 24, 1849. It is provided by statute, ch. 119, <§> 3, that no person shall be adjudged trustee “ by reason of money or other thing due from him to the principal defendant, unless it is at the time of the service of the writ upon him due absolutely and without depending on any contingency.”
The contingency named in the statute is one, which may prevent the principal from having any claim upon the trustee, or right to call upon him to account. Dwinel v. Stone, 30 Maine, 384.
The trustee, by his contract made on April 5, 1849, agreed to pay the principal a certain sum, when the note received of him was collected. The words “ when the same is collected” do not have reference to the time only, when payment was to be made, but they embrace the fact of collection. If the note received had never been, and could not have been collected, the principal would have had no claim upon the trustee ; and he was not therefore indebted to the principal absolutely, until after the note had been collected. It was not collected for many months after service of the process upon the trustee.
Exceptions sustained and trustee discharged.
