Moor v. Towle

Rice, J. — The plaintiff, having obtained a judgment against the principal defendant, was authorized to take out an execution thereon at any time within one year from its rendition. R. S., c. 115, § 104. This course he was entitled to pursue, notwithstanding he had, before he took out his execution, caused an action to be commenced upon the same judgment. Cushing v. Arnold, 9 Met. 23. The commitment of the defendant on the execution did not discharge or annul the judgment on which it issued, nor discharge the action pending thereon. The questions raised upon the pleadings, do not therefore become material. The trustee in his disclosure, stated very distinctly, that he was not in any way indebted to the prin [134] cipal defendant on account of real estate conveyed to Mm. By our statute a trustee is chargeable only for goods, effects or credits, in his hands or possession; which provisions do not include lands. He is under no obligation to answer interrogatories to the disparagement of Ms title to his real estate, and is not chargeable simply because he declines to answer such interrogatories. The unqualified declaration of a trustee, that he has no goods, effects, nor credits of the principal defendant in his hands or possession, will discharge him, unless there are such facts stated by him, or proved by other competent evidence, inconsistent with his declarations, as will be sufficient to overcome them. His declarations are entitled to a degree of weight equivalent to an answer in a bill in equity. Page v. Smith, 25 Maine, 256. In this case we think the facts disclosed by the trustee, and inconsistent with his declarations outweigh and overcome those declarations, though often repeated, and that for that reason he was rightfully charged. The exceptions are therefore overruled, and according to agreement, the principal defendant is to be defaulted. Shepley, C. J., and Appleton and Cutting, J. J., concurred.