Dyer v. Webster

The party summoned as trustee took a lease of an estate from Abbott & Cutler, who appear to have assigned their interest to one of the defendants. If there be no dispute upon this point, then the tenant would be liable to pay the rent to the defendant, that accrued after that assignment, and until the defendant assigned over to Russell. Whether there has been such an assignment, the court cannot proceed to inquire, without an opportunity being afforded Russell to be heard.

The law has made provision for cases like the present, so as to enable the court to give judgment against the trustee, without prejudice to absent parties, or for him, without injustice to those before the court.

The Revised Statutes, chapter 208, section 22, provide that, “if any person shall claim any money, goods, chattels, rights or credits, or other property in the hands • of any supposed trustee, by assignment from the debtor, or otherwise, the court may permit or cause him to appear and maintain his right.”

The party claiming the rent in this case, not having been summoned in for the purpose provided by the statute, the question is not ripe for decision, and the case must be discharged.

Case discharged.