RUGG, C. J. This suit in equity was begun by trustee writ in which the National Shawmut Bank was named as trustee. The National Rockland Bank was subsequently made a party defendant. It is alleged in the bill in substance that the defendant Silverman (hereafter termed the defendant) (1) owes the plaintiff the amount of a promissory note with interest thereon, (2) is a member of the firm of Hermanson and Silverman, who as co-partners carry an account with the defendant National Shawmut Bank, (3) owns certain shares of stock in the defendant National Rockland Bank, which cannot be reached in an action at law, and (4) has no sufficient means of satisfying any judgment which the plaintiff may recover unless his interests set forth in the bill can be reached and applied in payment of his debt. Prayers in the bill are (a) that the indebtedness of the defendant to the plaintiff be established; (b) that the interest of the defendant in the account in the name of Hermanson and Silverman be established and applied in satisfaction of such indebtedness; and (c) that the interest of the defendant in shares of stock in the National Rockland Bank be determined and likewise applied. The bill manifestly is framed under G. L. c. 214, § 3(7), and is brought to reach and apply in payment of indebtedness due to the plaintiff from the defendant property of the latter which cannot be reached to be attached or taken on execution in an action at law. The defendant in his answer (1) admitted making a note but pleaded ignorance whether the copy annexed to the bill is a copy of the note signed by him and called upon the plaintiff for proof, (2) admitted the allegations in paragraph 2, (3) denied those in paragraph 3, and (4) neither admitted nor denied those in paragraph 4 and called for proof. He further answered that, if the plaintiff should prove that the note was signed by him as alleged, it was signed under certain terms and conditions well known to the plaintiff and that the plaintiff, regardless of these terms and conditions, committed a breach of all of them. The defendant also answered that there was a failure of consideration. He did not plead in any form that the bill was not cognizable in equity. The National Rockland Bank and the National Shawmut Bank each filed a separate answer putting in issue the allegations of the bill affecting it. The case was tried in the superior court without the framing of jury issues. The trial Judge found as facts that the defendant signed the note for a valuable and adequate consideration; that nothing had been paid on it; that the plaintiff was the holder thereof; that at the time of the service of the writ upon the National Shawmut Bank as alleged trustee it held no funds of the defendant subject to attachment; that at the time of the service of the subpoena upon the National Rockland Bank the defendant had no right, title or interest in the stock of that bank; and that the defendant 'appeared and answered to the merits and the case was fully tried upon the merits.' The finding was for the plaintiff for a specified sum. A decree was entered dismissing the bill as to the two banks without costs. Final decree was entered ordering the defendant to pay the face of the note and interest and costs to the plaintiff. The appeal of the defendant brings the case here.
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