First Nat'l Bank of Clinton v. Bright
| Decision Date | 28 May 1879 |
| Citation | 126 Mass. 535 |
| Parties | First National Bank of Clinton v. Samuel Bright |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk.
Exceptions overruled.
G. W Morse & J. C. Lane, for the plaintiff.
T. E Grover, for the defendant.
This is a writ of scire facias against the defendant as the alleged trustee of one John W. Draper. The defendant was defaulted and adjudged a trustee in the original action; but it was competent for him to answer and prove in this suit any matter necessary and proper for his defence. Gen. Sts. c. 142, § 42. Fay v. Sears, 111 Mass. 154.
It appears by his answers that, at the time of the service of the original writ upon him, he was owing a balance upon his promissory note, dated February 6, 1861, payable in one year from date to the order of Otis Shepard, and secured by a mortgage of real estate, and that sad note and mortgage had been assigned to said Draper. He also stated in his answer that Marcus J. Delano claimed that the note and mortgage had been transferred to him by Draper before the service of the original writ. Delano was thereupon admitted as a claimant under the statute. Afterwards the defendant, by leave of court, filed an amendment to his answers, in which he states, "I was informed before judgment was rendered in the original action, and I believe that before the service of the plaintiff's writ upon me in the original action, said note had been transferred to said Delano by said Draper for a valuable consideration, and that at the time of the service of said writ upon me said Draper had no claim upon me on account of said note."
The plaintiff thereupon filed additional allegations averring that said note and mortgage had not been assigned to said Delano for a valuable consideration, but were the property of said Draper. The court ruled "that the allegations did not relate to facts not stated or denied in the answer of the defendant, and so excluded proof of the averments as immaterial." The only material question in the case is as to the correctness of this ruling, because both parties concede that, if this ruling is right, the other exceptions alleged in the case are immaterial.
The statute provides that the answers and statements sworn to by a trustee shall be considered as true, in deciding how far he is chargeable, but either party may allege and prove any other facts, not stated nor denied by him, that may be material in deciding that question. Gen. Sts. c....
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... ... payable in case of loss to Needham Co-operative Bank, first ... mortgagee, as its interest may appear. The ... Sears, ... 111 Mass. 154; First National Bank of Clinton v ... Bright, 126 Mass. 535; Varian v. New England Mutual ... ...
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...him from showing the facts. Mortland v. Little, 137 Mass. 339, 341.’ So far as Bostwick v. Bass, 99 Mass. 469, and First National Bank of Clinton v. Bright, 126 Mass. 535, may be inconsistent with the proposition just quoted, they must be regarded as no longer law. The judge was right in re......
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