Barry v. Abbot

100 Mass. 396

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1868
• Status: Published

Opinion

Hoar, J.

The provision for reaching and applying to the satisfaction of a debt the equitable assets of a debtor, which is found in the Gen. Sts. c. 113, § 2, cl. 11, and is copied from the St. of 1851, c. 206, and the St. of 1858, c. 34, has been the subject of judicial construction in several reported cases. It has been held that the remedy might be pursued by a creditor who had not exhausted his remedies at law, either by suing out an execution, or even reducing his claim to a judgment; and that it might be instituted by a creditor for himself alone, and not for himself and all other creditors who might come in and become parties to the suit, differing in this respect from what is commonly known in equity as a creditor’s bill. Silloway v. Columbia Insurance Co. 8 Gray, 199. Sanger v. Bancroft, 12 Gray, 365. Moody v. Gay, 15 Gray, 457. Crompton v. Anthony, 13 Allen, 33.

This express statute remedy does not seem to the court to have been taken away or limited by the grant of general equity powers; but to remain as a right of the suitor under the law. The decrees from which the appeal was taken were therefore correct in substance, and should be affirmed.

The defendants’ demurrers must be overruled; and their prayer to be admitted as joint plaintiffs in the suit, and to share in its proceeds, must be refused.

We observe that in the report a demurrer by the plaintiff to the answer is spoken of. The mode in which a plaintiff avails himself of defects in the answer is by exceptions, or by setting down the case for hearing upon bill and answer, and not by demurrer. But the case has been argued upon its merits; and the plaintiff is entitled, upon the pleadings and report, to an affirmation oí the decree appealed from, with costs.