Inhabitants of Marlborough v. Inhabitants of Framingham

Dewey, J. The questions of a trust arising under the will of Micah Stone, the persons for whose benefit that trust was created, and who were the trustees under that will, were all fully considered and settled by this court, in the case of Inhabitants of East Sudbury v. Belknap, 1 Pick. 512. To this extent the cases are alike. But upon the further question, whether the plaintiffs have such an interest in the fund as will entitle them to a decree in their favor, the cases are not analogous. In the case of East Sudbury v. Belknap, the plaintiffs had obtained judgment against the great grandchild, the pauper, for the amount of supplies that had been furnished him, they having sued the pauper, by virtue of St. 1817, c. 186, § 5, which authorized such action. This judgment being unsatisfied, it was held by the court, that upon the principles and practice prevailing in courts of chancery, it was competent for a creditor, having an unsatisfied judgment, and thereby interested in any fund of his debtor, which was placed in trust, to file a creditor’s bill, and thus enforce his claim against such trust fund. This court, although with some apparent hesitancy, sustained the bill, in the case referred to, under that principle of equity proceedings. It is, I believe, the only reported case in our own reports, where a similar application for relief, by a sole creditor, as an unsatisfied judgment creditor, has been the subject of consideration by this court, although the principle is a familiar one in chancery courts. But it is required, as preliminary to the filing of such a bill, that judgment shall have been obtained against the debtor. No such judgment has been obtained in the present case, and no proper case, therefore, presents itself for the application of the principle upon which the bill was sustained in the case of East Sudbury v. Belknap. Indeed, we do not know of any provision of law by which such a judgment can now be obtained; the St. of 1817, c. 186, having been repealed by the general repealing act of 1836, Rev. Sts. page 824, and no similar provisions reenacted. See Inhabitants [332] of Deer Isle v. Eaton, 12 Mass. 328. Selectmen of Bennington v. McGennes, N. Chip. 45, and 1 D. Chip. 44. The result is, therefore, that this bill must be dismissed.