Porter v. Giles

Gray, C. J. The bond in suit was given pursuant to the St. of 1877, o. 97, which provides, in § 1, that any person having an interest, by assignment or otherwise, in money or credits attached by trustee process in an action against another, may at any time before final judgment dissolve such attachment, or any part thereof, by giving bond, with sureties, “ with condition to pay to the plaintiff the sum to which the bond applies and for which the trustee may be charged, if any, not exceeding the value of the property in his hands, or so much thereof as will satisfy the amount recovered by the plaintiff, within thirty days after final judgment; ” and, in § 2, that “ upon the filing of the bond the trustee may deliver to the person, by whom or in whose behalf as principal such bond is given, the money or other thing in his hands, or that part thereof to which the bond applies, and shall not be liable to the plaintiff therefor, after such payment, and no execution shall issue against him therefor.” The sum “ for which the trustee may be charged, if any,” can only be ascertained in the suit to which he is a party; and the provision of the statute that “no execution shall issue against him ” for the fund in his hands clearly implies that that suit shall proceed to judgment against him; just as in the ordinary case of a bond given by a defendant to dissolve an attachment on mesne process in a civil action, under the Gen. Sts. c. 123, § 104, with condition “to pay to the plaintiff the amount, if any, that he may recover, within thirty days after final judgment in such action,” that action proceeds to judgment against the defendant. In either case, the fund or property attached is released from attachment, and consequently from execution; but a judgment must be rendered, in the suit in which the attachment is made, against the trustee in the one case, or against 591 the principal defendant in the other, in order to ascertain the amount which may be recovered under the bond given te dissolve the attachment. The ruling of the court below, that the plaintiff could not recover in this action, because the trustee had not been charged, but had been discharged, in the trustee process, was therefore correct; and there must be Judgment for the defendants.