that they did have property in their hands, belonging to the principal, at the time of the service of the writ.

If the plaintiff be not satisfied with the general answer of the trustee, he must file his interrogatories with the clerk, and give notice thereof, to the trustee, who must make and file his answers thereto, and give notice thereof, to the plaintiff. The plaintiff may then, in like manner, file further interrogatories, which the trustee must, in like manner, answer, and so on alternately, until the examination is completed. These interrogatories and answers must be respectively filed within reasonable times; and if a trustee unreasonably neglect to answer interrogatories, the court, on motion of the plaintiff, will assign a day, by which his answers shall be filed, or the trustee defaulted.1

By whom answers must be made. If the trustee live in the county, where the writ is returnable, he must answer in person, that is, his own name must be signed to his answers. But if he reside in any other county, he may appear and answer, by attorney. And in the latter case, if the plaintiff do not see fit, further to examine the trustee, his answers, so made by attorney, shall be deemed and taken to be true.2

Mode of answering. The answers of the trustee, should be in writing, and signed, either by himself, or his attorney, according to the rule just stated. Upon the back of the written answer, should be minuted the names of the counsel for the plaintiff, and trustee.3 And if either party wish to be heard, before the decis

1 35th Rule C. C. Pleas, and seventeenth rule referred to therein. Appendix B.

2 Stat. 1817. ch. 148. s. 2.

29th Rule C. C. Pleas. Appendix B.

ion of the court, there must, also, be minuted, the words, "for argument.""

The answers, thus prepared, are filed with the clerk, who minutes upon them and upon the docket, the time of receiving them.

Making oath to answers.

It is, in no case, necessary, that the general answer, first made by the trustee, should be sworn to, if an examination upon interrogatories be intended.2 Nor is it necessary, though it is sometimes practised,

that the trustee should make oath to each set of answers, when he files them. He may wait until the examination is concluded, and then, at once, make oath to all his

answers.

If the trustee live in any other county, than that, in which the writ is returnable, and the plaintiff see fit to examine him upon oath, after he has made his general answer, the answers of the trustees may be sworn to, before any judge of the Court of Common Pleas, for the county, in which he dwells, or before any justice of the peace; and such answers, being duly filed in the court, in which the writ is pending, shall have the same effect, as if they had been sworn to, in that court.s

If the trustee live in the same county, in which the suit is brought, he generally makes oath to his answer in court, before the clerk. But this is not necessary; for if he have appeared in court, and submitted himself to an examination on oath, his answers may be sworn to, in the same manner, as if he resided out of the county.*

2

1 29th Rule C. C. Pleas. Appendix B.

Chapman v. Phillips, 8 Pick. Rep. 25. Stat. 1817. ch. 148. s. 2. 3 Stat. 1817. ch. 148. s. 2.

4 Ibid.

The answers of the trustees having been duly filed and sworn to, and the examination completed, the case, on the motion of either party, in term time, is put on the "nisi list,” and is heard, if necessary, and determined, by the judge, at the law sittings at chambers, usually in vacation, without the intervention of a jury. At the succeeding term, the judgment, if made up, is declared by the judge, by which the trustee is either discharged, and if so, with full, or partial costs, or without costs, according to the rules hereafter to be stated,' or he is charged to a certain amount.2 The case is thus disposed of, so far as the trustee is concerned, unless it be carried to the Supreme Court.3

When and how, an assignee may become a party to a trustee process. If a person summoned as trustee, shall, in his answers, disclose an assignment to another, of the goods, &c. of the principal, in his hands, and the plaintiff shall object, that the assignment ought not to defeat his attachment, the assignee so named, may, if the court think it just or convenient, become a party to the suit, for the purpose of trying the validity and effect of the assignment.^

-

Such assignee may so become a party, either by appearing voluntarily, and claiming to be so admitted,

1 Vide Chapter on Costs.

2 Note. By Stat. 1829. ch. 128. s. 2. a person, who is summoned and charged as trustee, may retain for counsel fees; the amount so to be retained, and the necessity of employing counsel, to be determined by the court.

3 Note. The practice stated in this section, is that of the Court of Common Pleas only, that court being the only one, to which trustee writs could be made returnable, until by the recent Stat. 1833. ch. 171. they were allowed, in certain cases, to be brought to the Supreme Judicial Court.

* Stat. 1817. ch. 149. s. 1.

or by coming into court, upon being notified for that purpose, by a summons, which the court, upon the motion of either party, is authorized to issue, to be served and returned, in such time and manner, as the court may think the circumstances of the case require. If the supposed assignee do not appear, in pursuance of such summons, his non-appearance will be entered on the record, or the case may be continued to the next term, for further notice to the assignee, at the discretion of the court. If such assignee do not eventually appear, either in person, or by attorney, then the assignment shall have no effect, to defeat the plaintiff's attachment. But if he do become a party, then the validity of the assignment, or its effect upon the case, shall be tried by the court, or by a jury, as the case may require : and on the trial, the original defendant may be admitted as a witness, upon the application of either party.1

The trial, if by the court, is like a common hearing upon trustees' answers, and if by a jury, is the same as an ordinary jury trial. Upon its determination, the court may award legal costs, for and against

any of the parties, at its discretion; — and either party may appeal from the judgment.2

1 Stat. 1817. ch. 148. s. 1.

2 Ibid.

CHAPTER XXI.

EVIDENCE.

The mode of procuring the different sorts of evidence, that may be used in the trial of a cause, is all that, under this head, comes within the limits of the subject of practice.

And in reference to this point, the kinds of evidence so used, may be reduced to these three, namely, documents, public or private,- oral testimony or witnesses, - and depositions.

SECT. I. DOCUMENTS.

If documents, such as statutes, public or private,— records of any courts, judgments foreign or domestic, verdicts, &c. be required in the course of a trial, the party needing them, will procure the originals, if necessary, at their place of deposit, -or copies, where they are admissible, authenticated according to the laws of evidence, in the various cases.'

If deeds, or wills, or writings not under seal, or books of accounts, or private papers of any sort, be required, the party, if they be not controlled by his adversary, will obtain and produce the originals, or copies, where allowable, duly authenticated:- and in cases where the execution of such papers must be proved, will provide himself with the legal evidence of

1 Vide 1 Stark. Ev. 150. for the legal evidence of all such documents.