Lord v. Collins

• Decision Date: 03 March 1887
• Citation: 79 Me. 227,9 A. 611
• Court: Maine Supreme Court
• Parties: LORD v. COLLINS.

9 A. 611

79 Me. 227

LORD

v. COLLINS.¹

Supreme Judicial Court of Maine.

March 3, 1887.

On exceptions by respondent from supreme judicial court, Somerset county.

Bill in equity, in the nature of an equitable trustee process, brought under Rev. St. c. 77, § 6, art. 10. The complainant procured a sale of horses under a statute lien for their keeping, and brought this bill in equity to recover, from the money in possession of the clerk of court, being the excess of sale over complainant's lien judgment, his further claim for keeping the same horses from the date of his former petition to the date of sale. The court at nisi prius held that the bill in equity could not be maintained, and the respondent alleged exceptions.

Thos. H. B. Pierce, for complainant.

D. D. Stewart, for respondent.

PETERS, C. J. No view that can be taken of this case on its merits makes the bill maintainable. It is professedly a bill in the nature of an equitable trustee process, brought under Rev. St. c. 77, § 6, art. 10. It has been decided that in such a proceeding there must be some third party summoned in, —an equitable trustee. If it were not for this necessity, creditors might too much embarrass debtors before obtaining execution against them, against the policy of the law. Donnell v. Railroad Co., 73 Me. 567. In this case there is on third party,— no equitable trustee. And from the facts alleged we do not see how there can be any. If the clerk were made such party, evidently he could not be holden. He has been acting merely as the hand of the court, and not for himself. He should not be subjected to the risk and expense of a litigation. Nor does it follow that he would be holden even if acting in an individual capacity merely. We have judicial notice, from another case before us, that a person other than the respondent claims to be a mortgage owner of the animals which were sold. Even if the respondent's possession of the property might have invested him with the authority to create a lien on the animals for their keeping, that lien cannot subsist upon the funds in question. Lord v. Collins, 76 Me. 443. It is impossible to make the court itself a party by it being an official depository of the fund. The statute relied on as furnishing a remedy cannot possibly accomplish such a thing, and was never intended to. The result of the matter simply is that the court has in its official possession an amount of money which can be surrendered only when the court is satisfied upon...