Knights v. Paul , 77 Mass. 225 ( 1858 )

Metcalf, J.

The Rev. Sts. c. 109, § 17, provide that “ if it shall appear that any goods, effects or credits, in the hands of any supposed trustee, are claimed by any other person, by force of an assignment from the principal defendant, or otherwise, the court may permit such claimant to appear and maintain his right.” The question on these exceptions is, whether such claimant can be permitted to appear, for the first time, on a scire facias brought against the supposed trustee, who made no answer in the original process, but was defaulted.

No time is prescribed by § 17, above cited, within which such claimant may be permitted to appear and maintain his right under an assignment. “ If it shall appear,” for the first time, on scire facias that such claim is made, we are of opinion that he may then be allowed to appear and maintain it. By § 41 of c. 109, the trustee himself, if he has not been examined in the original suit, may plead and prove any matter necessary or proper for his defence to the scire facias. Accordingly the present defendant set forth, in answer to this scire facias, an assignment to Joseph H. Merry of the balance due from the defendant to Fenner, and Merry thereupon moved for leave to become a party to this suit. We think the motion was rightly granted. Exceptions overruled.