Jamnback v. Aamunkoitto Temperance Soc‪.‬

CROSBY, J. This is an action of contract, commenced by trustee process in the district court of Fitchburg, in which the plaintiff seeks to recover on a promissory note where the principal defendant is the maker. The finding of the Judge charged the trustees, and they bring the case to this court, contending that they are aggrieved by the finding. After the bringing of the action a motion was filed by the plaintiff for a special precept authorizing the attachment of certain personal property of the defendant located on its premises and on which property the trustees claim to have a mortgage. This motion was allowed and the precept issued. The officer's return on the precept showed that he attached the defendant's personal property on premises occupied by it; that subsequently he removed the personal property so attached as the result of a demand made upon him to do so by the attorney for the defendant. The death of John Niemi, named as one of the trustees in the special precept, occurred before the return day, and his death was suggested to the court. The trustees named in the special precept answered that they had no goods, effects or credits of the defendant in their hands or possession at the time of the service of the precept upon them and that the defendant owed them $1,600 secured by a mortgage duly recorded, and they offered to submit themselves to be examined under oath, and prayed that they be discharged. The trustees were examined in writing and orally. At the examination it appeared that they had no goods, effects or credits in their possession belonging to the defendant at the time of the service of the special precept on them, but that the defendant owed them $1,600 secured by a mortgage given to them, and to the deceased trustee Niemi, by the defendant. The mortgage was in common form and covered the property attached; it contained a clause giving the mortgagor possession until a breach thereof. There was evidence from which the Judge could find that the mortgage was invalid as against the plaintiff. The recitals in the officer's return were the only evidence as to who had possession of the property attached, except that there was no claim that the mortgagees had taken possession of the property prior to breach of the conditions, or that there was any breach of the mortgage at the time of the attachment. At the close of the evidence the trustees requested the Judge to rule (1) that on all the pleadings and evidence the trustees be discharged; (2) that certain named persons summoned as trustees in the special precept were so summoned under G. L. c. 246, and not as trustees for the mortgagor under G. L. c. 223 (section 79).