Downing v. Downing

Massachusetts Supreme Judicial Court

Downing v. Downing

227 Mass. 7

CourtMassachusetts Supreme Judicial Court

DecidedMay 24, 1917

StatusPublished

Cited by4 cases

This text of 227 Mass. 7 (Downing v. Downing) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Downing v. Downing, 227 Mass. 7 (Mass. 1917).

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Opinion

Rugg, C. J.

Eleven interrogatories were propounded to the trustee. It answered two and refused to answer the other nine. On motion and after hearing an order was entered by the court [9]*9directing that the remaining interrogatories be answered on or before a certain date. The trustee then answered one further interrogatory and refused to answer the others. It was thereafter defaulted and adjudged a trustee for its failure to answer these interrogatories.

The practice as to interrogatories to those summoned as trustees in actions at law is governed by R. L. c. 189, §§ 9 to 18, and not by St. 1913, c. 815, enacted in substitution for R. L. c. 173, §§ 57 to 67, and c. 159, §§ 15, 16. A trustee is not ordinarily an adversary party and cannot be subjected to cross-examination. But he may be examined somewhat in detail in order to elicit facts tending to charge him.

Some at least of the interrogatories propounded in the ease at bar were pertinent as calculated to show that under the cloak of the name of another the principal defendant had money on deposit with the trustee. It was germane to this line of inquiry to extend the questions to a period of time somewhat before the service of the writ. It is not necessary to determine whether all the interrogatories were competent which the trustee refused to answer. Those relating to the previous state of the account of the principal defendant certainly were, and the trustee’s absolute refusal to answer covered these. While it is true that a trustee, having no interest in the action between the principal parties, is entitled to the protection of the court to the end that he is put to no excessive expense and trouble, Cavanaugh v. Merrimac Hat Co. 213 Mass. 384, yet he may be interrogated to a reasonable extent in order to ascertain the true state of the account between him and the principal defendant. The case is covered by MacAusland v. Taylor, 220 Mass. 265, and cases there collected.

Order charging trustee affirmed.

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Rugg, C. J.

Eleven interrogatories were propounded to the trustee. It answered two and refused to answer the other nine. On motion and after hearing an order was entered by the court [9]*9directing that the remaining interrogatories be answered on or before a certain date. The trustee then answered one further interrogatory and refused to answer the others. It was thereafter defaulted and adjudged a trustee for its failure to answer these interrogatories.

The practice as to interrogatories to those summoned as trustees in actions at law is governed by R. L. c. 189, §§ 9 to 18, and not by St. 1913, c. 815, enacted in substitution for R. L. c. 173, §§ 57 to 67, and c. 159, §§ 15, 16. A trustee is not ordinarily an adversary party and cannot be subjected to cross-examination. But he may be examined somewhat in detail in order to elicit facts tending to charge him.

Some at least of the interrogatories propounded in the ease at bar were pertinent as calculated to show that under the cloak of the name of another the principal defendant had money on deposit with the trustee. It was germane to this line of inquiry to extend the questions to a period of time somewhat before the service of the writ. It is not necessary to determine whether all the interrogatories were competent which the trustee refused to answer. Those relating to the previous state of the account of the principal defendant certainly were, and the trustee’s absolute refusal to answer covered these. While it is true that a trustee, having no interest in the action between the principal parties, is entitled to the protection of the court to the end that he is put to no excessive expense and trouble, Cavanaugh v. Merrimac Hat Co. 213 Mass. 384, yet he may be interrogated to a reasonable extent in order to ascertain the true state of the account between him and the principal defendant. The case is covered by MacAusland v. Taylor, 220 Mass. 265, and cases there collected.

Order charging trustee affirmed.

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227 Mass. 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downing-v-downing-mass-1917.

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