9. Where he has large and long-continued dealings with the principal defendant, which have never been adjusted, and of which he has kept an account, but refuses to state the particulars, alleging that he cannot do it; he is chargeable, though he express a belief that the balance is greatly in his favor. In order to discharge himself, he must state so much of the account as he has himself kept, and the remainder according to the best of his recollection and belief. Ibid.

10. It seems, the rule, that a respondent in the trustee process shall be charged, if he leaves it doubtful whether he has goods, &c., of the principal defendant, applies, only where, upon some part of his answers, unexplained, he appears prima facie to have such goods, &c. Shearer v. Handy, xxii. 417.

11. A supposed trustee disclosed, that he had had no dealings with the defendant, nor made any promise or undertaking to him, within six years; that no promise or agreement made previously thereto had been broken or fell due, or any cause of action accrued thereon, during such term of six years; and that he did not believe that he had one cent of money, which the defendant had a right to demand or collect of him, because, if for no other reason, every such claim was barred by the Statute of Limitations. Held, though the defendant might still have claims upon which the respondent might be charged, consistently with his answer, yet, no interrogatories being put in relation to them, he had stated enough to bring himself within the statute, and should be discharged. Crossman v. Crossman, xxi. 21.

12. The trustee further disclosed, that "his belief was, that he did not owe the defendant any thing; that he had not in his possession any goods put into his hands by the defendant, that he knew of; that he did not know of having any money of the defendant in his hands, and did not believe that he had; that the defendant had never put into his hands any goods or money, either to be applied to some particular purpose, or accounted for, or to be delivered on demand, to his knowledge, where the purposes for which the same were put into his hands were not fully answered, or the money repaid to the defendant, more than six years before service of the writ; and that he did not know of having had, and did not believe that he had had, within six years, any goods or money of the defendant, which the defendant had a right to demand and recover of him. Held, upon this disclosure, he was clearly entitled to a discharge. — Ibid.

13. A., a manufacturer in the interior of England, made an arrangement with B., a merchant in Liverpool, to send B. goods, which B. should ship to customers of A. in the United States, pay the shipping charges, and make advances to A. on the goods

shipped. For the better security of B., A. made his irrevocable power of attorney to B.'s agent in this country, giving him full authority to collect all debts due A., and instructed the agent to remit all collections to B. at Liverpool, to be by him credited to A.; monies to be remitted at the risk of B., but drafts taken for debts, at the risk of A. A., having received an order from C., a customer in Massachusetts, sent packages to B, who shipped them to C. C. received them, and accepted a part of them, for which he thereby became indebted, but refused to accept the rest; and was afterwards summoned as the trustee of A., on account of the debt due, and the unaccepted packages in his hands. Held, B. had no lien upon either for his advances and expenses; that the facts showed no assignment either of the goods or their proceeds from A. to B.; and that C. was chargeable as A.'s trustee. Hall v. Jackson, xx. 194.

14. The respondent in a trustee process disclosed, that the defendant sold and delivered to him certain furniture and provisions to secure a debt, but still retained possession of them; that his claim exceeded the value of the furniture, but fell short of the value of the whole property, and that the defendant had consumed most of the provisions. Held, the respondent must be charged, as the answer did not state precisely what amount of provisions had been consumed at the service of the writ. — Graves v. Walker, xxi. 160.

15. If a supposed trustee answer, that at the service of the writ he was indebted to the defendant, but has since recovered a judgment against him, and set off the debt due from himself in satisfaction of it; the judgment is not per se conclusive against the plaintiff, but he may interrogate the respondent as to the circumstances under which it was obtained. But it is conclusive, if the answers show that it was recovered without fraud, and upon a claim prior to the service of the trustee process. Smith v. Stearns, xix. 20.

16. All necessary costs of the trustee's suit against the principal defendant may be included in the amount which he retains, though incurred after service of the trustee process. - Ibid.

17. Upon a settlement of accounts between the defendant and the town of W., a bank check, payable to bearer, was given by the town to the defendant, but under an agreement that it should be lodged with A., a selectman, and a creditor of the defendant, in order that he might obtain the money from the bank, pay his own claim and also one due from the defendant to the town, the amount of which, at the time of settlement, was not ascertained. Upon a trustee process against the defendant and the town as his trustee, commenced while A. held such check; held, the de

livery of the check was a payment of the debt due from the town to the defendant, and the trustee was discharged. Graves, xvi. 41.

Barnard v.

E. Claims of third persons to the fund in the hands of a trustee, and their effect upon his liability.

1. The consignor of goods on commission drew an order upon the consignees, which they accepted, requesting them to pay to his order, in thirty days, $1000, or what might be due after deducting all advances and expenses. After the acceptance, but before any sale, the consignees were summoned as trustees of the consignor. Held, the order was not negotiable; that, although accepted, it did not constitute an assignment, being made payable to the consignor's own order; and that the trustees should be charged. Cushman v. Haynes, xx. 132.

2. The respondent in a trustee process answered as follows. The defendant left certain negotiable notes with him for collection, for which he gave a receipt, promising to account for the proceeds to the defendant or bearer. A part of the notes had been collected, and the money was in the respondent's hands, when the writ was served upon him; but one A. had called upon him for the whole of the proceeds, producing, and claiming to be the bearer of, the receipt. Held, the receipt, not being a promise to pay a sum certain, was not negotiable, and, as it did not appear to have been assigned before service of the writ, the respondent must be charged. - Fiske v. Witt, xxii. 83.

3. The defendant, having given a note to the plaintiff, after its maturity, agreed with one A. and his creditors, that A. should periodically receive his wages from his employers, as they fell due, for the benefit of creditors, and pay the note by monthly instalments, and that, so long as the contract was fulfilled, the plaintiff should not sue upon the note. Two of the instalments having been paid, the plaintiff brings an action for the balance of the note; summoning the employers of the defendant as trustees. It appeared, that A. had notified them of the above contract, and requested them to pay him the wages; that they agreed to notify A. when they should be ready to pay the defendant, and, if the defendant would sign the pay-roll, and did not object, they would pay A. the sum due; and that the wages for two months were accordingly paid A. in the defendant's presence. Held, this was not an assignment to A. of the wages subsequently due, and the trustees were charged. Walker v. Russell, xvii. 280.

4. S., a laborer employed by a manufacturing corporation, drew an order, in March 1838, on the clerk, as follows: "Please pay L. and A. my wages from month to month, as they become due, and what may now be due me from the corporation." The clerk accepted the order, for the corporation, and all the wages of S. were paid to L. and A. until October, 1839. In November 1839, the corporation were summoned as trustees of S., and L. and A. knew of the process, but gave the corporation no notice of having made any advances upon the order, or that they claimed the money by virtue of it. Held, the order did not primâ facie constitute an assignment to L. and A., but only an authority to pay them; and that the corporation were chargeable as trustees of S. Carrique v. Sidebottom, &c. 3 Met. 297.

5. Where one verbally promises to pay the debt of another, to whom he is himself indebted, and, being summoned as trustee of the latter, discloses this promise, and that he considers himself bound by it; he is not chargeable, it being optional with himself whether to take advantage of the Statute of Frauds or Cahill v. Bigelow, xviii. 369.

not.

6. A., a shopkeeper, was authorized in writing by a manufacturing corporation, to advance goods and cash to the workmen to the amount of their earnings, and to deduct his advances from the checks, to be drawn upon him by the company for such amount. Held, this was a guaranty by the company to the shopkeeper, to pay for such advances to the extent of the earnings of the workmen ; and that, being summoned as trustees of one of them, they might deduct such advances from his wages, provided he knew of this arrangement between the company and the shopkeeper, and had assented to it; and, he having always received payment in that way, his knowledge and assent would be presumed. Swett v. Ordway, xxii. 266.

7. A., being indebted to B., paid the amount to C., a creditor of B., but without authority from him. D., another creditor, summons A. as trustee of B., after which B. ratifies the payment to C. Held, A. was chargeable in the trustee process. Sturtevant v. Robinson, xviii. 175.

8. Where A. being in the employ of B., assigns to a creditor his future earnings, which B. agrees to pay to the assignee; another creditor cannot attach them in B.'s hands, after they become due. Weed v. Jewett, 2 Met. 608.

F. Judgment and execution in the trustee process; scire facias upon such judgment.

1. In a trustee process against A., and C. as his trustee, C. disclosed that he was indebted to A. and B. jointly, and was thereupon charged. A. and B. afterwards bring an action upon their joint claim against C. Held, the former judgment was wrong; that it was not binding upon the present plaintiffs, and was no defence against any part of their claim. Hawes v. Waltham, xviii.

451.

2. If the answer of one summoned as trustee shows that he is chargeable for some amount, he will be adjudged trustee generally. The sum, for which he is to be charged, shall be settled by the scire facias, in case he fails to pay over what the plaintiff claims to be due. Winchester v. Titcomb, xvii. 435.

3. One summoned as trustee, on account of goods of the principal defendant in his hands, cannot legally deliver them to an officer, who seeks to attach them specifically; and, if they are taken by such officer, and not restored to the trustee upon demand, to satisfy the execution issued in the trustee process, the plaintiff in that process may bring an action against the officer. Rockwood v. Varnum, xvii. 289.

4. Where an execution is recovered against an individual, and a railroad corporation as his trustee, a demand of payment upon the president is sufficient. - Bickford v. Boston, &c., xxi. 109.

5. By St. 1794, c. 65, § 6, a trustee, having been examined on oath, and disclosed funds in his hands, in the original process, could not be reëxamined upon scire facias. By Revised Statutes, c. 109, § 41, on scire facias, the court may require or allow such reëxamination. By c. 146, § 5, the repeal of former statutes shall not affect any act done, or right accruing or accrued, or any suit or proceeding had or commenced, in any civil case, but the proceedings, in every such case, shall be conformed, when necessary, to the provisions of the Revised Statutes. In a scire facias, pending when these statutes took effect, held, the proceedings might be conformed to, and governed by, their provisions, without affecting any vested right, or invalidating any act done in the original suit, and, therefore, the Court might allow the trustee to answer anew. Ibid.

6. A writ of scire facias against a trustee, under St. 1794, c. 65, was not required to allege, that he had been charged in the former suit; nor was this judgment necessary in all cases, if any, where the trustee did not discharge himself on oath. (See Revised Statutes, c. 109.)

Ibid.