Cain v. Rockwell

The amendment of a writ, by changing the name of the plaintiff from “Mary Cain ” to “ Ann Cain,” does not vacate an attachment of funds in the hands of a person summoned as trustee, so as to give an assignment to a third person, made before the amendment, preference over the attachment.

Scire facias upon a judgment of the Police Court of Fitch-burg against the defendant as trustee of John Cain, upon which execution was issued, demand made upon the trustee, and the execution returned unsatisfied. Michael Danahy appeared as claimant of the funds in the hands of the defendant. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on agreed facts, in substance as follows: The plaintiff by the name of Mary Cain, which was a misnomer, her real name being Ann Cain, commenced a trustee process in the Police Court of Fitchburg against John Cain, as principal defendant, and the present defendant, as trustee, by writ dated August 11, 1879, and duly served on the trustee and the defendant on the following day, and duly entered in court. John Cain appeared and filed a plea in abatement on the ground of the misnomer, but the trustee did not appear or make any answer. The trustee at the time of service was owing John Cain $36.56 for his personal services- On September 13, 1879, on motion of the plaintiff, in said Police Court, the writ was amended by substituting Ann Cain for Mary Cain as the plaintiff’s name, the defendant by his attorney consenting to such amendment; and on October 4, 1879, judgment was rendered for the plaintiff for $35.42, and Rockwell was charged as trustee of John Cain for the amount of the judgment. The trustee was never notified of the plaintiff’s application for leave to amend her writ, and never had any knowledge of such application, or of the amendment being allowed, until after the judgment was rendered and an execution issued, and until a demand made upon him on the execution, which execution was issued and demand made upon him within thirty days after the date of said judgment; but Rockwell on being informed of the amendment refused to pay over the funds in his hands, on the ground that the same were claimed by Danahy. On August 22, 1879, John Cain being indebted to the claimant, Danahy, in a sum larger than the amount in the trustee’s hands, assigned to Danahy to secure such indebtedness all sums of money then due him from said Rockwell; and the debt to Danahy is still due. It is admitted that there was a valid and effectual assignment of the funds in the trustee’s hands to the claimant, unless the service of the plaintiff’s writ on the trustee created a valid attachment thereof; or unless such attachment became valid as against said assignment by the amendment of the writ. The trustee had notice of this assignment the day after it was made; but still holds the funds due John Cain.