Ricker v. Brooks

Morton, J. The demurrer in this case was rightly sustained. 1. The bill, though brought in the name of the collector of taxes, contained no allegation that there had been a neglect to pay the taxes for three months after committal to the collector. The right of the collector to bring suit in his own name being purely statutory, it was necessary to allege the existence of the fact or facts on which his right to sue depended. St. 1889, c. 334, § 7. 2. It was expressly held in Winchester v. Thayer, 129 Mass. 129, a case similar to this, that the judge of the Court of Insol [403] vency was improperly made a party defendant, and we think the reasons there given would apply as well to the register of insolvency. 3. It is difficult to understand the grounds on which Emerson and Fowler are made defendants. As we read the bill, the debtors had made to them, before the proceedings in the Court of Insolvency, an assignment at common law for the benefit of their creditors. But that fact clearly furnishes no reason for making them parties defendant to this bill, which is brought under the supervisory jurisdiction of this court for the purpose of vacating and annulling the composition proceedings in the Court of Insolvency, and has nothing to do with the common law assignment which was made to them, or with the property which it conveyed to them. So far, therefore, as the bill seeks to deal with the common law assignment and the property conveyed by it on the one hand, and to set aside and annul the composition proceedings on the other, it is multifarious. The two matters are entirely unconnected. It may be added, that it is not easy to see how this court could in any event order Emerson and Fowler to transfer to the Court of Insolvency, as prayed for in the bill, the property in their hands, or what that court could do with it if it got it. There is no provision that the judge or register shall act as custodians of property belonging to insolvent debtors. As the decree sustaining the demurrer and dismissing the bill must be affirmed for the reasons above given, it is not necessary to consider whether the bill could be maintained to set aside and annul the composition proceedings on the ground alleged. Decree affirmed.