Clark v. Gardner

123 Mass. 358, 1877 Mass. LEXIS 290

Opinion

Gray, C. J.

An adverse claimant is admitted as a party to the suit solely for the purpose of maintaining his right as against the plaintiff to goods, effects or credits in the hands of the supposed trustee, and not for the purpose of trying as against the defendant or the trustee the right to funds to which the plaintiff does not or cannot assert any title. Gen. Sts. e. 142, § 15. St. 1865, c. 43. Boylen v. Young, 6 Allen, 582. Peck v. Stratton, 118 Mass. 406. Evidence that there were no goods, effects or credits of the defendants in the hands of the trustee at the time of the service of the writ upon him would in effect prove the claimant out of court. The decision below admitting such evidence was therefore erroneous, and, as the judgment in favor of the claimant may have been founded upon it, the

Plaintiff’s exceptions must be sustained