
    Samuel Tryton vs. Otis C. Merrill.
    Suffolk.
    November 13.
    14, 1874.
    Wells & Devens, JJ., absent.
    In scire facias against a trustee, his answers, in the absence of any allegation of fact not stated or denied by him, are to be taken as true, and the questions arising thereon are to be decided by the court.
    The submission to the jury of an issue which ought to be decided by the judge does not enable the Superior Court to refer questions of law to this court by report under the Gen. Sts. c. 115, § 6.
    Scire eacias on a judgment against one Chamberlin and the defendant as trustee.
    At the trial in the Superior Court, before Dewey, J., the defendant contended upon his answers that he was not liable aa trustee. The judge ordered a verdict for the defendant, and reported the questions of law for the determination of this court.
    
      T. S. Dame, for the plaintiff.
    
      W. Hobson, for the defendant.
   Gray, C. J.

No allegation of facts not stated or denied by the trustee having been filed, his answers to the scire facias, like the answers of a trustee in the original suit, were to be considered as true, the questions arising thereon were to be decided by the court, and there was no issue which could lawfully be submitted to a jury. Gen. Sts. c. 142, §§ 11, 12, 42. Thompson v. Lowell Machine Shop, 4 Cush. 431. Winsted Bank v. Adams, 97 Mass. 110. Cardany v. New England Furniture Co. 107 Mass. 116. Fay v. Sears, 111 Mass. 154.

There was therefore nothing in the case which could be brought to this court by report. Bearce v. Bowker, 115 Mass. 129. Commonwealth v. Dowdican’s Bail, Ib. 133. Hubner v. Hoffmann, 106 Mass. 346. The submission to the jury of an issue which was by law triable by the court only could not enable the court below to refer questions of law to this court in a mode limited by the statutes to cases triable by a jury. Haas v. Harrington, ante, 135. Report dismissed.  