Winsted Bank v. Adams

97 Mass. 110 | Mass. | 1867

Hoar, J.

It was decided in Collins v. Smith, 12 Gray, 431, that it is competent for the court in which a trustee process is pending, at any stage of the proceedings before ultimate judgment, to receive a new and additional answer upon the trustee’s own motion, without a new interrogatory from the other party; and that justice requires that this should be done, when, through inadvertence or misapprehension, material facts have been wholly omitted in previous statements. It was further held in that case that such additional answer might be received, after the plaintiff had filed allegations of facts, concerning which there had been neither statement or denial by the supposed trustee; and that the new answer would be equally conclusive in favor of the trustee with any previous answer made by him.

We think that case is decisive of this. The permission given to the trustee to file an additional answer, being a matter of discretion with the superior court, is not the subject of exceptions. The statements of fact in the answer are conclusive in favor of the trustee, although made after the allegations of the plaintiffs were filed; and they make those allegations inopera" tive. The hardship of which the plaintiffs complain, that they should be concluded by the positive averment of the trustee in a case in which so many circumstances indicate fraud, results from the very nature of the process which they are pursuing. If they believe the transfer of property from the principal defendant to the trustee was fraudulent and void against creditors, they might have proceeded against the property, and tried the question by the ordinary modes of proof. But they chose to put their case upon a discovery sought from the supposed fraudulent vendee, and must take the consequence.

Exceptions overruled md trustee discharged.