Wallace v. Coyne

120 N.E. 73, 230 Mass. 475, 1918 Mass. LEXIS 982

• Court: Massachusetts Supreme Judicial Court
• Decided: June 24, 1918
• Status: Published

Opinion

Loring, J.

The question in this case is whether certain jewelry impounded by an order of a Police Court “for the purposes of prosecution of this complaint until further order of the said court” can be reached by trustee process in another court before the impounding order has been brought to an end. The Superior Court held that it could not and the plaintiff took the appeal which is now before us.

The appeal is founded on the fact that the principal defendants (from whose persons the jewelry was taken when they, were arrested on the complaint made to the Police Court in question) had been indicted, convicted and sentenced in the Superior Court for the crime on which the complaint to the Police Court was founded and that sentence had been affirmed by this court. But that fact goes no further than to show that the time had come for the Police Court to bring its impounding order to an end. The obstacle was that until the impounding order had been brought to an end the jewelry was in the possession and control of the Police Court and so not subject to be taken on a writ issuing out of another court. Columbian Book Co. v. De Golyer, 115 Mass. 67. Tuck v. Manning, 150 Mass. 211. Gregory v. Merchants’ National Bank, 171 Mass. 67. The personal property in question in King v. Ham, 6 Allen, 298 (the case mainly relied on by the plaintiff) was taken and kept by the arresting officer of his own motion and not under an order of court.

The plaintiff also has urged in support of his appeal that on the day on which the trustee writ was served and before the service of that writ one of the trustees had asked the district attorney who conducted the prosecution of the principal defendants in the Superior Court, whether there was any reason why the jewelry should not be turned over to the principal defendants if they made a demand for it and that the district attorney “in his capacity of district attorney and acting as such for the government, stated that as district attorney he saw no reason why the said jewelry should not be turned over to the” principal defendants, if demanded of the trustees. But that did not remove the obstacle. At most it showed that the district attorney was willing- that the obstacle should be removed.

It is not necessary to consider the further defence set up, namely: That the jewelry was in the hands of persons as public officers forr which they were accountable to the principal defendants as such officers within R. L. c. 189, § 31, cl. 3, as to which see Gregory v. Boston Safe Deposit & Trust Co. 173 Mass. 419; Berlin Mills Co. v. Lowe, 211 Mass. 28, 30; Travelers Ins. Co. v. Maguire, 218 Mass. 360.

The decisions of our own court referred to above are decisive of the question now before us. It is not necessary to examine in detail the cases in other jurisdictions relied on by the plaintiff.

Order discharging trustees affirmed.