Huntress v. Burbank , 111 Mass. 213 ( 1872 )

Morton, J.

1. The defendants’ objections to the declaration relate merely to the form of stating the cause of action and could be taken by demurrer only. Batchelder v. Batchelder, 2 Allen, 105. Shawmut Ins. Co. v. Stevens, 9 Allen, 332. Upham v. Damon, 12 Allen, 98. It is not necessary to consider whether the declaration would be held sufficient on demurrer.

2. The defendants admitted the execution of the bond sued on, and the rendition of thé judgment, as alleged in the declaration. The execution issued upon such judgment was properly admitted in evidence to show that it was unsatisfied. The proper and Usual mode of showing whether a judgment is satisfied, is the return of the officer on the execution. If the plaintiffs had failed to produce the execution, it would have raised against them a presumption that the judgment was satisfied. The production of it unserved and apparently unsatisfied, had some tendency to show that the judgment had not been paid. Its weight was to be determined by the judge to whom the facts were submitted, trial by jury having been waived. It does not appear that any ruling was asked or made as to the effect of the certificate of the plaintiffs’ counsel indorsed upon it. If it be admitted that the burden was upon the plaintiffs to show that the judgment was unsatisfied, in order to make out a prima facie case, it was competent for the judge to find this fact from the production of the execution apparently unsatisfied, together with such inferences as might be drawn from the failure of the defendants to offer any evidence of payment.

3. The defendants do not insist upon the objection that judgment was entered for a sum less than the penalty of the bond, and it is clear that this informality could not prejudice them.

4. The only remaining question is whether the plaintiffs are entitled to recover interest during the pendency of the suit in which the defendants were summoned as their trustees. In this case interest is not due by the terms of the contract, so as to constitute a part of the debt. Whatever interest the plaintiffs can recover is by way of damages for unjustly detaining the debt, No evidence was offered of any fraud or collusion on the part of the defendants or of any unreasonable delay in answering as trustees ; and nothing appears in the case to take it out of the general rule, that a debtor is not chargeable with interest as damages for delay in the payment of a debt, when such’ delay is caused by his being summoned as the trustee of the creditor. Oriental Bank v. Tremont Ins. Co. 4 Met. 1. Bickford v. Rich, 105 Mass. 340.

The result is that, according to the terms of the report, judgment is to be entered for $1600, and execution to be issued for $114.62. Judgment and execution accordingly.