Graves v. Walker

38 Mass. 160

• Court: Massachusetts Supreme Judicial Court
• Decided: January 30, 1839
• Status: Published

Opinion

Per Curiam.

Upon the answers the respondent’s account would stand thus : —

Amount of the articles sold . . $161-80

Deduct the claim of the respondent . 75-00

86-80

Deduct Priest’s prior claim . . 50-00

36-80

Then, if the provisions were consumed to the amount of $37-30, there would remain no balance. But the respondent says only that most of the provisions were consumed. Now he is to give such an answer as will enable the court to say judicially that he should be discharged.

As in the case of the New England Ins. Co. v. Chandler, 16 Mass. R. 275, the trustee is to be charged only for the surplus remaining in his possession, or in his control, at the time of the service of the writ.

In the case at bar the trustee does not answer with sufficien precision as to the provisions which were consumed at the time when the process was served upon him. If they were not all consumed, he should be charged. If by most is to be understood, that somewhat more than one half of the value was consumed or destroyed prior to the service of the xv -it, then there would be a surplus which would be liable to this process. The facts are not sufficiently disclosed. We think therefore that the trustee is to be charged.