Mode of Collecting Debts. fects, or credits of the principal, or wish to refer that question to the court upon the facts, he may make a declaration, setting forth such facts as he may deem material, and submit himself thereupon to a further examination on oath. Trustee not appearing, to be defaulted. Any person duly summoned as a trustee, neglecting to answer, will be defaulted and adjudged a trustee. Mode of trial when trustee appears.—The answers and statements sworn to by any person summoned as a trustee, will be considered as true in deciding how far he is chargeable, but either party may allege and prove any other facts not stated or denied by the supposed trustee, that may be material in deciding that question. Adverse claimant may become a party, when.-An adverse claimant of the property in the hands of the supposed trustee may be admitted as a party to the suit, so far as it respects his title to said property. Principal defendant may be a witness. Upon any trial between the attaching creditor and any other person claiming the same effects, the principal defendant may be examined as a witness for either party, if there be no other objection to his competency except his being a party to the original suit. Trustee having specific goods.—Any person chargeable as a trustee by reason of goods or chattels other than money, which he holds or is bound to deliver to the principal defendant, must deliver the same, or so much thereof as may be necessary, to the officer holding the execution, and he will sell the same, and apply and account for the proceeds as in the case of a common execution. Liability of trustee for non-delivery of such goods.—If any trustee refuse or neglect to deliver any goods in his hands, when lawfully required by the officer serving the execution, he will be liable to the plaintiff in the action for the value thereof, after deducting the amount of his lien thereon, if there be any, to be recovered as money is recovered when not paid on the first execution, pursuant to the judgment against a trustee. Mode of Collecting Debts. What demands not attachable by this process.-No person will be adjudged a trustee, 1. By reason of having drawn, accepted, made, or indorsed any negotiable bill, draft, note, or other security: 2. By reason of money or any other thing received or collected by him as a sheriff or other officer by force of an execution or other legal process in favor of the principal defendant in the foreign attachment, although the same have been previously demanded of him by the principal defendant: (a) 3. By reason of any money in his hands as a public officer, and for which he is accountable, merely as such officer, to the principal defendant: (b) 4. By reason of money or other thing due from him to the principal defendant, unless it be, at the time of the service of the writ on him, due absolutely and without depending on any contingency: (c) 5. By reason of any debt due from him on a judgment, so long as he is liable to an execution on the judgment. d) Debt may be attached before it is payable.—Any money or other thing due to the principal defendant, may be attached before it has become payable, provided it be due absolutely and without contingency; but the trustee will not be bound to pay or deliver it before the time appointed by the contract. Fraudulent conveyance to the trustee.-Any person, summoned as a trustee, having in his possession goods, effects, or credits of the principal defendant, held by a conveyance or title that is void as to creditors of the defendant, may be adjudged a trustee, on account of such goods, &c., though the principal defendant could not have maintained an action therefor against him. (e) Proceedings on scire facias.-Any person adjudged a trustee who does not satisfy the execution in the original suit (if it be not otherwise satisfied), will be liable to a writ of scire facias, and if, after due notice, he neglect to appear and answer thereto, he will be defaulted; and if he was not examined in the original Mode of Collecting Debts. suit, judgment will be rendered and execution will issue against him, his own goods and estate, for the sum remaining unsatisfied on the judgment against the original defendant. If the trustee have been examined in the original suit, judgment on the scire facias will be rendered on the facts stated on that examination, for the amount with which the trustee was originally chargeable, or so much thereof as will satisfy the judgment against the principal defendant. If the trustee appear and answer to the scire facias, not having been before examined, the whole matter will be open for examination, as in the original suit. Costs of trustee.-Any person summoned as a trustee, appearing at the first term, and submitting himself to examination as before provided, will be allowed to retain his costs for travel and attendance, and such sum as the court may allow for necessary expenses, out of the effects in his hands. If any person who is summoned as a trustee and dwells in the county where the writ is returnable, is defaulted in the original suit, and a writ of scire facias is issued, he will be personally liable for the costs of the suit in the scire facias, unless he has paid over all such effects on the original execution, or was prevented from appearing in the original suit by absence from the state or some other cause deemed sufficient by the court. How writs may be framed.-Original writs may be framed either to attach the goods or estate of the defendant, and for want thereof to take his body; or it may be an original summons, either with or without an order to attach the goods or estate. In actions against corporations, and in other cases in which goods and estate may be attached, but the defendant is not liable to arrest, the writ of attachment and original summons may be combined in one, requiring the officer to attach the goods and estate, and to summon the defendant. Attachment on mesne process.-The attachment of property upon a writ is one of the most common and effectual means of securing a debt. The effect of such attachment is fully discussed Mode of Collecting Debts. in the cases cited below. (a) It is held in this commonwealth that an attachment of property on mesne process is a security or lien on property, and that it could not be impaired or destroyed by any thing contained in the United States bankrupt law. (b) Both an attachment and arrest cannot be made on the same writ, and the one last made will be void. (c) Where bail may be required.-No person may be arrested or held to bail on a demand arising on any contract made after July 4, 1834, unless the plaintiff or some person in his behalf make oath before a justice of the peace that said plaintiff has a demand against the defendant, on the cause of action stated in the writ, which the deponent believes to be justly due, and on which he expects that the plaintiff will recover ten dollars or upwards, and that the deponent has reasonable cause to believe that the defendant is about to depart beyond the jurisdiction of the court to which the writ is returnable, and not to return till after judgment may probably be recovered in said suit, so that he cannot be arrested on the first execution, if any, which may issue in such suit. (d) Females cannot be imprisoned on mense process or execution on any contract made after July 1, 1831, except in a judgment against them as trustees for ten dollars and upwards. (e) No member of the house of representatives may be arrested or held to bail on mesne process, during his going to or returning from, or attending, the general assembly. (ƒ) Time within which judgment may be obtained when there is no controversy.-In cases that have been defaulted, and where verdict has been rendered and no further action taken by the losing party, judgment is rendered as of the last day of the term, unless otherwise expressly ordered, by the court; but where the terms are very long, as in Suffolk county, it is usual, after waiting the time prescribed by the rules for filing exceptions or making a motion for a new trial, to order judgment to be entered as of a particular day, in which case the day must be noted by the (a) 10 Met. R. 320. 2 Story's R. 131. 3 Ib. 428. 7 Law Reporter, 77. (d) R. S. 90. (e) Ib. 97. (f) Constitution of Mass. § 10. Mode of Collecting Debts. clerk on his docket. It is never allowed till the last day, at the first term. (a) How long after judgment, goods attached on mesne process may be held.—If final judgment be rendered for the plaintiff, goods and estate attached on mesne process will be held for thirty days after judgment, in order to their being taken on execution; and if the attachment is made in the county of Nantucket, and the judgment is rendered in any other county, or if the judgment is, rendered in Nantucket, and the attachment is made in any other county, the goods and estate will be held for sixty days after final judgment. (b) Execution. The party obtaining a final judgment in any civil transaction, may take out his execution at any time after twenty-four hours after judgment rendered, and these hours are exclusive of the Lord's Day. If an execution be sooner issued and levied, the levy is void. (c) He may also take it out within one year, but not afterward. If he take it out within such time, and it be returned at any time within a year after the return day of that which preceded it, he may have an alias execution, except that if the debtor have been surrendered by his bail, the creditor may sue out an execution after the surrender, though more than a year has elapsed after the return day of the next preceding execution. (d) A pluries execution may be obtained in the same way, and any number of pluries from year to year. If the creditor neglect to keep his execution alive in this manner, he can resort to a scire facias, or an action of debt, to revive his judgment. Both real and personal property may be sold upon execution; the debtor being allowed one year to redeem real estate, on payment of debt, costs and interest. No female may be imprisoned on mesne process or execution for any debt founded on a contract made after July 1, 1831, . except on a judgment against her as a trustee, for ten dollars or more, in a process of foreign attachment. When the plaintiff has the body of the defendant in execution, his right to proceed against his property is suspended. (e) But (a) R. S. 97. Colby's Practice, 992. (e) 8 Met. R. 496. R. S. 87. (e) 11 New Hampshire R. 311. (b) R. S. 90. (d) R. S. 97. Colby's Practice, 295. |