Atwood v. West Roxbury Co-operative Bank

Holmes, J. It was decided in Atwood v. Dumas, 149 Mass. 167, that the present defendant was chargeable in trustee process in a suit against Dumas. The present proceeding is scire facias under the Pub. Sts. c. 183, § 50, for a judgment and execution against the trustee. The defence relied on is that a bond to dissolve the attachment was given by Dumas under the Pub. Sts. c. 183, § 71. But that section does not authorize defendants in trustee suits to give the kind of bond which it contemplates. The bond contemplated by that section, and given in this case, is conditioned to pay the sum for which the trustee may be charged, not exceeding the value of the property in his hands, etc. If a defendant wishes to dissolve an attachment, he can do so by giving a bond conditioned to pay the amount that the plaintiff may recover. Pub. Sts. c. 161, § 122. But the provision of the Pub. Sts. c. 183, § 71, is in favor of “ any person having an interest by assignment or otherwise in money 167 or credits attached by trustee process in an action against another,” nob of a defendant wishing to dissolve an attachment in an action against himself. The reason for the difference in the extent of the undertaking required is obvious. The plaintiffs have done nothing to estop them from asserting the trustee’s liability. The amount for which the defendant is chargeable was settled by its answers to interrogatories in the original action, and is admitted by its answer here, stating that it paid over to the defendant Dumas the moneys in its hands belonging to her, to wit, sixty-two dollars and sixty-six cents. See Pub. Sts. c. 183, § 52; Atwood v. Dumas, 149 Mass. 167, 168, 170; Brown v. Tweed, 2 Allen, 566. Judgment affirmed.