Thompson v. King , 173 Mass. 439 ( 1899 )

Knowlton, J.

This is a suit on seire facias brought against a person summoned as trustee. In such a case the trustee may answer and prove any matter that may be necessary and proper for his defence, notwithstanding' that he was charged in the action on which he was originally summoned. Pub. Sts. c. 183, § 53. Fay v. Sears, 111 Mass. 154. Varian v. New England Accident Association, 156 Mass. 1. If he has previously answered, the court may allow him to file a new and additional answer at any stage of the case. Collins v. Smith, 12 Gray, 431, 434.

The plaintiff contends that, under the Pub. Sts. c. 183, § 70, the defendant is liable absolutely for the value of the goods on account of his neglect to deliver them to the' officer who demanded them on the execution. But this demand was not made as required by the statute. There was no service on the trustee in person, as there should be in ordinary cases. The Pub. Sts. c. 183, § 47, provide that, “if the trustee cannot be found in the Commonwealth by the officer to whom the execution is committed for service, a copy of the execution may be left at his dwelling-house, or last and usual place of abode.” Instead of serving the execution in this way, the officer’s return shows that he delivered an attested copy of it, with his demand indorsed thereon, to the attorney of the trustee, and tendered him a sum claimed to be due for storage, and on the same day made a like demand on one Brigham D. James, who was in charge of the defendant’s storage warehouse. This was not such a service as is necessary to create a liability under the Pub. Sts. c. 183, § 70; moreover, it does not appear that there was any order of the court for a payment or tender to the trustee of the amount due him, as is required by the Pub. Sts. c. 183, § 66, in order to make it the duty of the trustee to deliver the goods to the officer who demands them on the execution.

The plaintiff also contends that there was error in refusing to

grant his motion for a trial by jury on the issues raised by the amended answers, after a waiver of a trial by jury had been filed, in the expectation that the only issues would be those raised by the pleadings before the amendments were allowed. A waiver in writing of a trial by jury applies to all issues of fact in the case, whether then existing or raised by subsequent pleadings. Loring v. Whittemore, 13 Gray, 228, 233. Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591. After such a waiver has been filed, neither party is entitled as of right, upon motion, to have the agreement cancelled and the case submitted to a jury. Bailey v. Joy, 132 Mass. 356. Dennie v. Williams, 135 Mass. 28.

The judge having found that the value of the goods at the time of the sale was less than the amount of the defendant’s lien upon them, it was unnecessary to consider whether the order of sale was valid. Exceptions overruled.