Hubbard v. Lamburn

• Decision Date: 19 October 1905
• Citation: 189 Mass. 296,75 N.E. 707
• Parties: HUBBARD v. LAMBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 296

75 N.E. 707

HUBBARD v. LAMBURN.

Supreme Judicial Court of Massachusetts, Middlesex.

October 19, 1905

COUNSEL

S.W. Mendum and R. E. Joslin, for plaintiff.

J. L Powers, for claimants.

OPINION

BRALEY J.

At the adoption of our state Constitution the form of legal procedure known as the 'trustee process' had been established by the provincial statute of 32 Geo. II, c. 2 and was in common use. Jarvis v. Mitchell, 99 Mass 530, 531. St. 1794, p. 120, c. 65, was a revision of this statute, and of the subsequent statute of 1788. St. 1788, p. 27, c. 16, § 4. After providing the form of writ, full provisions were made for the summoning, appearance, and answer of the trustee, and his examination upon written interrogatories, as well as for subsequent proceedings that might be required to make the remedy effective. A practice seems to have prevailed under this enactment that, if the debt had been assigned, the assignee was required to notify the trustee, and before the latter was examined to exhibit to him evidence of the assignment. It became the duty of the trustee in his answers to disclose this fact, with the evidence of the transfer, the validity of which was then determined by the court. Unless such notice was given, payment by the trustee on execution operated as a discharge. Comstock v. Farnum, 2 Mass. 96; Foster v. Sinkler, 4 Mass. 450; Wood v. Partridge, 11 Mass. 488, 491; Dix v. Cobb, 4 Mass. 508, 511. See Marvel v. Babbitt, 143 Mass. 226, 227, 9 N.E. 566. An inference would not be unwarranted that under this system an opportunity would be open for a successful evasion of an anticipated attachment by a fraudulent assignment, while the rights of an assignee might be imperiled by a refusal of the trustee to make the assignment a part of his answer. In some of the earlier cases, the court suggests that if the assignee also was summoned, upon his being interrogated, such collusion might be exposed. Dix v. Cobb, ubi supra; Gordon v. Webb, 13 Mass. 215. But in Hawes v. Langton, 8 Pick. 67, 69, 70, it is said that this suggestion never became the practice.

By St. 1817, c. 148, a new and more satisfactory proceeding for the benefit of both was first authorized between the plaintiff and an assignee. Parker v. Danforth, 16 Mass. 299, 300; Hawes v. Langton, ubi supra; Burlock v. Taylor, 16 Pick. 335, 336. Any person adversely interested, who asserted title to the 'goods, effects or credits' by force of an assignment, was given the absolute right to intervene voluntarily in the suit, or to appear, upon a summons issued on motion of the plaintiff, and to establish his claim as superior to that of the attaching creditor. Boylen v. Young, 6 Allen, 582; Mortland v. Little, 137 Mass. 339. When admitted as a party, under either form of appearance, he takes upon himself the corresponding burden of proof, and, having submitted his claim for adjudication, is obliged to follow such forms of procedure for the framing and trial of the issues as may have been legally adopted. By section 1 it was provided that an assignee, upon '* * * his appearing voluntarily, and claiming to be so admitted, or upon coming into court upon being notified by a summons * * * and upon * * * becoming a party to the suit, the validity of the assignment, or its effect on the case, shall be tried by the court, or by a jury, as the case may require.' The reported cases, so far as examined, seem to show the practice under this section uniformly to have been to submit all issues of fact to a jury. See Parker v. Danforth, ubi supra; Adams v. Robinson, 1 Pick. 461, 462, ad finem; Burlock v. Taylor, ubi supra; Sibley v. Smith, 19 Pick. 546; Dennis v. Twitchell, 10 Metc. 180. Indeed, it was said by Chief Justice Shaw, in Sibley v. Smith: 'The intervening party is allowed to bring proofs and try his title upon fact and upon law, and in this way he can have a trial of fact by the jury.'

No statutory change was made until by Rev. St. 1836, c. 109, this section was divided, and the part now under consideration appears in sections 16, 18. By section 16 'shall' was changed to 'may,' and this portion recast so as to read: 'Any question of fact arising * * * may be tried and determined by the court, or may be supmitted to a jury in such manner as the court shall direct.' Notwithstanding this change, the former practice apparently still continued. Eldridge v. Benson, 7 Cush. 483; Richardson v. Forepaugh, 7 Gray, 546. See, however, Taylor v. Lynch, 5 Gray, 49, for an exception where all the issues were determined by the court. No material modification was made either by Gen. St. 1860, c. 142, §§ 12, 16, or Pub. St. 1882, c. 183, §§ 18, 36. But the practice under these revisions seems to have been substantially changed, and such cases were tried to the court. See Boylen v. Young, supra; Gifford v. Rockett, 119 Mass. 71; Clinton Bank v. Bright, 126 Mass. 535; White v. Coleman, 127 Mass. 34; Sheehan v. Marston, 132 Mass. 161; Marvel v. Babbitt, 143 Mass. 226, 9 N.E. 566; Moors v. Goddard, 147 Mass. 287, 17 N.E. 532; Butler v. Butler, 162 Mass. 524, 39 N.E. 182; Creed v. Gilman, 169 Mass. 562, 48 N.E. 778.

Inasmuch as a remedial process unknown to the common law was provided, under article 15 of the Declaration of Rights the unqualified privilege of either party to a trial of the issues of fact by a jury was preserved. The controversy is 'between two or more persons,' and certainly involves the right to property. If the plaintiff in the present case had been nonsuited, or defeated in a trial upon the merits, or if the trustee had been discharged, the claimants could have brought suit at common law to recover the money. They then would have been entitled to a jury trial, if seasonably claimed. Declaration of Rights, art. 15; Rev. Laws, c. 173, § 56. The form which the litigation may assume does not change the nature of the controversy. In either action the object to be accomplished is to settle the right to the debt, which has been held to be the correlative of 'credits.' Wilde v. Mahaney, 183 Mass. 455, 460, 67 N.E. 337, 62 L. R. A. 813. And this is true, whether the original owner or his assignee sues the debtor directly, or the title is determined in a suit brought by a creditor of the owner, to which others interested are allowed by intervention to become parties. Powers v. Raymond, 137 Mass. 483. Rev. Laws, c. 189, re-enacted previous revisions for the appearance of adverse claimants, and in section 32 refers to section 16 for the form of trial of questions of fact that may be presented. This last section in its literal wording plainly leaves the option of a jury trial to the discretion of the court. But, when read in connection with its legislative origin, supplemented by the practice that prevailed under the original statute, if a jury trial is seasonably claimed, 'may,' in the second clause, should be construed to mean 'shall.' Phillips v. Fadden, 125 Mass. 198, 201. By this construction the statute can be sustained as being in harmony with the constitutional right upon which the claimants rely.

It may be suggested that the remedy provided for adverse claimants is to be considered as...