Bickford v. Boston & Lowell Railroad

Wilde J. afterward delivered the opinion of the Court. The only material objection to the declaration appears to be, that there is no averment that the defendants were adjudged trustees in the original process. If such an adjudication is required by the true construction of the statute of 1794, c. 65, which was in force when this suit was commenced, undoubtedly the objection is well maintained, for the declaration contains no direct averment to that effect, and it does not appear, except argumentatively, that any such adjudication has been made. But it is the opinion of the Court, that such an adjudication is not in all cases, if in any, required by the statute. The 5th section provides, that when the plaintiff shall recover judgment against the principal, and there shall be one or more trustees summoned, who shall not have come into court and discharged themselves upon oath of being trustees, as supposed in the writ, the court shall award execution against the goods, effects and credits of the principal in the hands and possession of every such trustee, as well as against the body, goods and estate of the principal. And the form of the execution conforms to this requisition of the statute. By this section the court are certainly not required to render any judgment except against the principal, and an award of execution against the goods, effects and credits in the hands of the trustee. The 6th section directs the manner in which judgment is to be rendered for or against the trustee on scire facias. These are the only material sections which bear upon the present question, in neither of which is it required that the court shall render judgment against the trustee in the original suit. On the contrary,' they have no authority so to do, although the trustee should expressly admit that he was indebted to the principal as charged in the writ. It is true, that when the trustee comes in on the original process, and submits to an examination, and prays to be discharged on his answers, the court is bound to decide the question whether he is entitled to a discharge, or whether he appears to be a trustee or not; but the decision of the court is an interlocutory decision not definitively binding on the [112] trustee, and consequently it may be omitted to be set forth m the scire facias. If the trustee does not appear and discharge himself on oath in the original suit, he may be defaulted, but in that case there is no adjudication that he is chargeable as trustee ; that question is postponed until scire facias shall be brought, when he may or may not discharge himself. Now that may be, for aught we know to the contrary, the condition of the present defendants. The record of the proceedings are not set out in the declaration, nor was it required, but the defendants on oyer might have had the whole record set out, and thus it might have been ascertained whether the defendants came in and answered to interrogatories, or were defaulted, or whether there was or was not any adjudication against- the trustee. Whether this would be material or not, it is not necessary to decide, for such an adjudication, if made, was no part of the judgment in the original suit. When a party brings debt or scire facias on a judgment, the judgment only is to set out, and whether it was rendered on nonsuit, or default, or on verdict, or demurrer, is never required to be alleged. We are, therefore, clearly of opinion, that the judgment in the original suit is sufficiently set out, and that it is valid and regu lar. The case of Dyer et al. v. Stevens, 6 Mass. R. 389, is directly in point, and fully sustains this opinion. Oct. 16th, 1838. As to the objection, that the demand on the president of the defendant corporation was not sufficient, it appears to the Court, that as he was at the head of the corporation, he was the most proper person upon whom th'e sheriff should have made the demand. Declaration adjudged good. On the original trustee process the trustees hied answers tending to charge themselves, but not for any specified sun ; and while the scire facias was pending in this Court, the Revised Statutes went into operation. After which the trustees moved, under Revised Stat. c. 109, § 41, for leave to answer anew. Hoar, in support of the motion, referred to Valentine v. Boston, 20 Pick. 202. Farley and A. W. Austin, contra, insisted that the answers [113] on the examination in the original suit, were an admission of funds in the hands of the respondents to the amount of the plaintiff’s demand ; that in such case, under St. 1794, c. 65, § 6, the trustees could not be examined anew on scire facias, and consequently that their motion could not be granted without affecting rights which had already accrued to the plaintiff before the Revised Statutes took effect. Revised Stat. c. 146, § 5, 7 ; Cleveland v. Clap, 5 Mass. R. 201 ; Sebor v. Armstrong & Tr. 4 Mass. R. 206. Oct. 19th. Shaw C. J. delivered the opinion of the Court. On scire facias against the defendants as trustees, they come in and move to amend their answers, made by their president, in the original suit. By the Revised Statutes it is expressly provided, that on scire facias against a trustee, the court may require or permit him to be examined anew, whether he had or had not been examined in the original suit. Revised Stat. c. 109, § 41. This motion is opposed, and it is contended that the Revised Statutes do not apply, because this suit was not only pending, but had in fact been entered in this court before the Revised Statutes were passed, and this appears by the record to be the fact, the appeal on this scire facias having been entered in October, 1834. It also appears that the trustees were examined and charged in the original suit. The objection is placed on the provision in Revised Stat. c. 146, § 5, that the repeal of former acts shall not affect any act done or right accruing or accrued, or any suit or proceeding had or commenced, in any civil case. But the proceedings in every such case shall be conformed, when necessary, to the provisions of the Revised Statutes. The question then is, whether there is in this case any right accrued to the plaintiff, which will be affected by the granting of the motion, or whether it is merely a step in the cause pending. The obvious purpose of the statute was to confirm existing rights, to give effect to acts done, but to regulate proceedings which were afterwards to be had. The original suit and the scire facias under the trustee process, constitute one connected and continued course of proceedings. The original judgment does nothing more than declare the trustee liable, on [114] his answers, without fixing the amount. The Court are of opinion, that the proceedings on scire Jacias may be conformed to and regulated by the provisions of the Revised Statutes, without affecting any vested right, or invalidating any act done, in the original suit, and therefore that it is competent to the Court to grant the motion, under the clause of the Revised Statutes first cited. Valentine v. Boston, 20 Pick. 202. On the grounds stated, the Court think it equitable that ;he motion be granted upon proper terms, as to the time of filing a further answer, and as to costs. Motion granted.