A. Who are liable to the trustee process; where it must be brought; and the effect of an attachment thereupon.

1. In general, one who has never resided in this State is not liable to the trustee process. Nor does a different rule apply, where he comes here and takes an assignment of property from a resident for benefit of creditors. Hart v. Anthony, xv. 445.

2. Under c. 158, of St. 1839, the property, in this State, of "a corporation incorporated by any other Sta e," may be attached by the trustee process. Ocean, &c. v. Marine, &c. 3 Met.

420.

3. A foreign corporation, having no goods, &c., in Massachusetts, cannot be charged in the trustee process, though many of its members and officers reside here, and its books and records are kept here.Danforth v. Penny, 3 Met. 564.

4. A., a citizen of New York, made there an assignment of his goods in New York, to B., a citizen of Massachusetts, in trust for payment of his creditors, most of whom lived in New York; to which assignment the creditors were not parties, but which, by the law of New York, was a valid transfer. The goods having never been brought into Massachusetts, C., a creditor living in Massachusetts, brings an action against A., and summons B. as his trustee. Held, B. was not chargeable. - Wales v. Alden, xxii. 245.

5. The service of a trustee process, upon a trustee living out of the county where it is returnable, is void or voidable, unless the writ contain the name of one living in such county; although such a name be inserted before service upon the principal defendant. — Hooper v. Jellison, xxii. 250.

6. An officer, holding several trustee writs, delivered copies of them all to the trustee at the same time. Held, the attachments thus made were simultaneous, and the several plaintiffs entitled respectively to recover an aliquot part of the proceeds of the property. Rockwood v. Varnum, xvii. 289.

Kimball v.

7. Section 19, c. 163, of St. 1838, relating to insolvent debtors, applies to attachments by the trustee process. Morris, 2 Met. 573.

B. What are goods, effects, and credits, liable to attachment by the trustee process.

1. Where the master of a coasting-vessel has no claim against the owners, for his services or otherwise, a shipper of goods on board such vessel is not chargeable as trustee of the master, for the amount of the freight. -Richardson v. Whiting, xviii. 530.

2. A policy of insurance, upon certain sugar belonging to A., was made payable to B., of London, as collateral security for advances made thereupon. A loss having happened and been paid to his agent in Boston; held, the agent was accountable only to B., and therefore was not chargeable as trustee of A.

v. Flint, xviii. 140.

Cramer

3. An insolvent debtor made an assignment, under St. 1836, c. 238, of all his property, which was insufficient to satisfy the creditors who had a right to become parties. The assignees, by consent of all those creditors, reconveyed to the assignor, to enable him to make a settlement with them. Held, the assignees were not chargeable in a trustee process, as trustees of one who became a creditor of the assignor after the assignment. - Small v. Sproat, 3 Met. 303.

4. A testator, having devised certain land and bequeathed certain chattels to a minor, whom he also made a residuary legatee, afterwards sold and conveyed such property to A., taking his notes for the price. After his death, his executor delivered the notes to the guardian of the minor, who gave his receipt therefor "in full of the legacy bequeathed" to the minor, and collected the money due thereon. The executor was afterwards removed from his trust, and an administrator de bonis non, cum testa. annex., was appointed. Held, the guardian was not chargeable in the trustee process, as trustee of the executor. Stevens v. Goodell, 3 Met. 34.

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5. A fund was placed in the hands of A. & B., in trust for the benefit of L. &. C. The donors of the fund, pursuant to a power originally reserved by them to make new limitations of the fund, afterwards directed that A. & B. should hold such part of L.'s share of the fund as remained in their hands, in trust, to be applied for the support of the children of L., in such way and such proportions, as A. & B. might see fit. Held, the holders of the trust fund could not be charged, in a trustee process, as trustees of the husband of a daughter of L. Vincent v. Gorham, 3 Met. 343.

6. Where an administrator is summoned as trustee of a creditor of his intestate, the attachment is a lien upon the whole

amount which such creditor can ever claim. Hence, where the estate is insolvent, and the administrator, after such attachment, sells the real estate for payment of debts, under a license, and receives the proceeds, and also collects debts due the estate, and a distribution among the creditors is then ordered by the Probate Court; the administrator will be charged for the full amount of the dividend decreed to the principal defendant. - Boston, &c. v. Minot, 3 Met. 567.

7. The interest of an heir, in a distributive share of the intestate estate, may be attached by the trustee process in the administrator's hands, before a decree of distribution, and though it is uncertain whether there will be any assets for distribution; and the suit may be continued, to await a settlement of the administrator's account and a decree of distribution.— Wheeler v. Bowen, xx. 563.

8. So, the interest of a husband in his wife's distributive share, or a legacy given her, may be thus attached in the hands of the executor or administrator, even before a decree of distribution. Ibid. Holbrook v. Waters, xix. 54.

9. In an action against a husband, an administrator, having in his hands a distributive share belonging to the wife, was summoned as trustee, but before judgment the husband died. Held, the wife's right of survivorship had not been lost, and the trustee was discharged. Strong v. Smith, 1 Met. 476.

10. Where an entire contract is made, for labor on a large number of articles, in process of manufacture, to be paid for when finished; the owner cannot be charged as trustee of the laborer, until. the work is performed on all the articles. — Robinson v. Hall, 3 Met. 301.

11. A debt may be attached by the trustee process, though made payable in another State. Sturtevant v. Robinson, xviii. 175.

12. A sum of money, being due to A. & B. severally, was paid them in checks on banks. A. directed B. to take the checks and get the money for them, which they would afterwards divide. B. accordingly obtained the money from the banks in bank-bills, and, before dividing it, was summoned as trustee of it. Held, he was chargeable. Morrill v. Brown, xv. 173.

13. Trustee process against a bank, and one A., as trustee. A. disclosed, that he was accustomed to take up the bills issued by the bank, charge it with the amount, credit it with the funds which it furnished to take them up, and return the bills to the bank, and, at the service of the writ, he had in his hands bills thus taken up. Held, he was not chargeable. Wildes v. Nahant, &c. xx. 352.

14. A., having mortgaged goods to B., took out a policy of insurance upon them, for a sum exceeding B.'s claim, payable to B. The goods having been burned, but before proof of loss according to the terms of the policy, B. was summoned as trustee of A., and afterwards received from the underwriters the full sum insured. Held, B.'s liability to A., when he was summoned, was contingent, and therefore that he must be discharged. — Meacham v. M'Corbitt, 2 Met. 352.

C. Practice in the trustee process; interrogatories, issue, appeal, costs.

1. A plaintiff may propose interrogatories to a supposed trustee, tending to draw out facts which go to charge the latter; but not for the purpose of discrediting his disclosures. Thus, he cannot cross-examine the supposed trustee ; nor ask him what he has heretofore said to others. Crossman v. Crossman, xxi. 21.

2. The answer of a respondent in the trustee process does not form an issue in law, within the meaning of § 13, c. 81, of the Revised Statutes; and a single judge may charge or discharge him, subject to a bill of exceptions. Shaw v. Bunker, 2 Met. 376.

3. In a trustee process, where the ad damnum does not exceed $ 100, if one claiming the fund in the hands of the supposed trustee becomes a party, and suffers a judgment against him, not founded upon matter of law apparent on the record; he cannot appeal. Sibley v. Smith, xix. 546.

4. One summoned as trustee, at the first term, appeared and made answers, upon which questions of law arose. The case was once continued, and then brought to the Supreme Court. At the first term in this court, the law questions were argued, and the case continued nisi for advisement; and at the next term the trustee was charged. Held, under Revised Statutes, c. 109, § 49, 50, he was entitled to tax costs for travel at each term, for full attendance at each term except the last, and for three days' attendance at that term; for the clerk's fees; a reasonable sum for counsel fees; but not an attorney's fee in either court. Holbrook v. Waters, xix. 354.

5. Held, counsel fees should be allowed in such case, though one of several trustees was a counsellor of this court, and appeared as their counsel.

Ibid.

6. Where a principal defendant is defaulted at the first term, and the trustee appears, and submits to an examination, and the

case is continued in order to settle the question of his liability, and he is ultimately discharged; he is entitled to his costs for travel and attendance, like a prevailing party. — Crocker v. Baker, xviii. 407.

D. Pleas and answers in the trustee process; upon what answers the respondent will be charged or discharged.

1. One summoned as trustee may, in his own name, plead in abatement a defective service as to him, though he has not answerThayer v. Ray, xvii. 166.

ed.

2. But the writ will not on this ground be abated as to the principal. — Ibid.

3. Trustee process, returnable in the county of Suffolk. Plea in abatement by the supposed trustee, that, when the writ was sued out and served upon him, he dwelt in the county of Norfolk, and not in the county of Suffolk, and that at that time none of the parties then named in the writ as trustees dwelt in the county of Suffolk; concluding with a verification. Held, the plea was not double, and the conclusion was right. - Hooper v. Jellison, xxii. 250.

4. A. brings an action against B., which by rule of court is left to referees, their award to be final. After the award, C., a creditor of A., brings a suit against him, and summons B. as his trustee. Held, as B. could have no opportunity to plead a judgment against him as trustee, in defence to the other suit, he should be discharged. M'Caffrey v. Moore, xviii. 492.

5. If a debtor, who has been summoned as trustee of his creditor, pay him before receiving notice of the service of the writ, he is not chargeable, though he suspected, when he made such payment, that the creditor demanded it because he apprehended the institution of a trustee process. Robinson v. Hall, 3 Met. 301.

6. Where an interrogatory is fully and intelligibly answered, the Court will not require the respondent to answer further, on his being asked to answer the interrogatory distinctly. Carrique v. Sidebottom, 3 Met. 297.

7. Where a respondent discovers that he has stated a fact incorrectly, or in such manner as to lead to a wrong inference; he may be allowed to correct his answer by a further one, without any new interrogatory. — Ibid.

8. Such respondent will be charged, though he states his belief that he has nothing in his hands, unless he make a full disclosure, and answer all pertinent interrogatories, so far as he can. - Shaw v. Bunker, 2 Met. 376.