Kellogg v. Leach

37 N.E. 767, 162 Mass. 45, 1894 Mass. LEXIS 10

• Court: Massachusetts Supreme Judicial Court
• Decided: June 23, 1894
• Status: Published

Opinion

Morton, J.

The first objection which the defendants make is, that the affidavit annexed to the execution' is defectix-e in stating “ that the debtors Hosea W. Leach and P. A. Underwood, named in the said execution, have property not exempt from being taken on execution which he does not intend to apply to the payment of the judgment creditor’s claim.” It is contended that it is uncertain who is meant by “ he,” and that therefore there is no charge that the defendant Leach has property which he does not intend to apply to the payment of the plaintiff’s claim. But we think that the affidavit is to be construed distributively, as if it read, “ the debtors Hosea W. Leach and P. A. Underwood each have property,” etc. Abbott v. Tucker, 4 Allen, 72. Hill v. Bartlett, 124 Mass. 399. Foster v. Leach, 160 Mass. 418. Stearns v. Hemenway, ante, 17.

The other questions are disposed of by Stearns v. Hemenway, ubi supra, and therefore need,not be further considered.

Exceptions overruled.