be used, in personal actions as above, against any person or persons, "other than bodies politic or corporate."1 A corporation, therefore, never can be the principal defendant in a trustee process.

Against what persons as trustees. It was formerly holden that individuals only could be summoned as trustees.2 But now, by Stat. 1823. ch. 164. corporations are made liable to be summoned as trustees, and the provisions of Stat. 1794. ch. 65. are extended to them.

A person not an inhabitant of the state, though summoned as trustee while within the Commonwealth, cannot be held to answer as trustee. 3

How defendant's property must be situated. Under this head, we shall consider only the cases, where from the situation of the defendant's property, this writ, and not the common writ of attachment, is most proper.

The statute gives this proceeding where goods, effects or credits are so entrusted and deposited in the hands of the trustees "that the same cannot be attached by the ordinary process of law." The trustee writ, therefore, is not the proper remedy when the goods and effects of the defendant, in the possession of another person may be attached by the ordinary process. But if the person entrusted with them has locked them up and detains the key, or claims a right to retain them, by virtue of a supposed lien, and does

3

1 Stat. 1794. ch. 65. s. 1.

2 Union Turnpike v. Jenkins & Tr. 2 Mass. Rep. 37.

3

Tingley v. Bateman & Tr. 10 Mass. Rep. 343. Ray & al. v. Underwood & Tr. 3 Pick. Rep. 302.

not expose them to attachment, they may be attached by this process.'

:2

This statute has received a very liberal construction by our courts in this respect. Goods and effects of a debtor may be physically within the reach of an officer to attach, yet the creditor may avoid by the trustee process, many difficulties which might occur by recourse to the common form of capias and attachment. Thus if the trustee claims to have a lien upon the property or to hold it as a pledge,- or where goods have been consigned to and received by the trustee to sell as a factor or if they were fraudulently transferred to defeat or delay creditors,— though the goods are not concealed in any of these cases, and might be attached, yet a trustee process will lie; and it seems to be peculiarly proper in the instance last mentioned, because it is only by this method of proceeding, that the fraudulent holder of the goods can be put upon his oath and be compelled to submit to an examination. So if a person remove the goods to his house and claim to hold them as a pledge, they will be liable to attachment in his hands. by this process, though they might have been attached under the ordinary process. And in general, it is not necessary that the goods should have come into the hands of the trustee by any contract with, or even by the authority or consent of the debtor, to render the goods liable to be attached in his hands, under this process; it is sufficient, if the trustee pretend to

1 Ibid.—Parker v. Kinsman & Tr. 8 Mass. Rep. 486.

2 Grant et al. v. Shaw, 16 Mass. Rep. 341.

3

Burlingame v. Bell, 16 Mass. Rep. 318.-Thomas v. Goodwin & Tr. 12 Mass. Rep. 140.—Swett et al. v. Brown & Tr. 5 Pick. Rep. 178. * Swett et al. v. Brown & Tr. 5 Pick. Rep. 178.

hold them under any claim, against the rights of an attaching creditor.1

But the trustee must have the actual possession or control of the property, so that he may be able to turn it out on execution, or he cannot be charged on account of it. Therefore, one to whom property is assigned, of which he has only the constructive possession, as in case of a ship and cargo at sea, is not liable as trustee under this process.

3

2

Where personal property, exempt by law from attachment, has been mortgaged or pledged, or is subject to any lien created by law, it is now provided by statute, that the mortgagee, pledgee, or holder, may be summoned as the trustee of the mortgagor, pledgor, or general owner, and upon being paid or tendered the amount of his claim, shall give up the property to the attaching officer,- or that the property may be attached by the ordinary process, upon payment or tender to the mortgagee, pledgee, or holder, of the amount for which it is mortgaged or pledged to, or holden by him.

Where lands have been fraudulently conveyed, the trustee process is not the proper form of remedy, as the grantee is not, by the terms of the statute, chargeable by reason of land of the debtor, in his possession:* -the proper course of proceeding, in such case would be, to attach the land as the property of the fraudulent debtor. But if one to whom real estate has been conveyed by his debtor, as security for his debt, sells the

1 Swelt et al. v. Brown and Tr. 5 Pick. Rep. 178. Andrews v. Ludlow & Tr. 5 Pick. Rep. 28.

3 Stat. 1829. ch. 124.

How et al. v. Field & Tr. 5 Mass. Rep. 390.

same, he is liable, as trustee of the debtor for the surplus.1

The Stat. 1794. ch. 65. provides in sect. 4. that if the trustees shall all be discharged or the plaintiff shall discontinue as to them, he may still proceed against the principal, to which is added by Stat. 1798. ch. 5. s. 1. the proviso, if such service of the original writ have been made on him, as would have authorized the court to render judgment against him, in an action brought in the common mode of process. Whether this form of writ, can be used, without any trustees named in it, but served on the defendant in the same manner as if there were, is not settled. In Badlam v. Tucker et al. where this form had been resorted to by a plaintiff, but no name of any person inserted as trustee, and the officer attached property, the court held that the writ was not void, and that the judgment therein was valid by virtue of Stat. 1794. ch. 65. The question in that case, however, was not between the attaching creditor and the debtor, but the objection was made by a person claiming as purchaser, and the case does not decide, whether the objection would not be good, if taken on plea in abatement by the defendant.

3

SECT. VI. REVIEW.

None of the statutes authorizing reviews have prescribed the form of the writ.

The courts, therefore,

1 Pierson v. Weller, 3 Mass. Rep. 564.

247.

Webb v. Peele, 7 Pick. Rep.

2 Vide. Gardner v. Barker & Tr. 12 Mass. Rep. 36. Jacobs et al. v. Mellen & Tr. 14 Mass. Rep. 132. Bullard v. Brackett, 2 Pick. Rep. 85.

1 Pick. Rep. 389.

according to their "ancient and constant practice," as stated by Parsons, C. J. in Cooke v. Gibbs,' have gran ted a writ by which parties may obtain the remedy given them by the statutes.

Accordingly a writ of review will be issued by the clerk, either of the Supreme Judicial Court or the Court of Common Pleas, upon application. In form it is an original summons, commanding the officer to summon the defendant in review, to appear and answer to the plaintiff in review, in a plea of review of a plea of the case &c.

The subject of review will be treated of in a subsequent chapter. It is mentioned in this connexion only as the writ of review is one of the writs in use in our practice.

SECT. VII. SCIRE FACIAS.

A scire facias is a judicial writ founded on some matter of record, as a recognizance, judgment, &c. requiring the person against whom it is brought to shew cause why the party bringing it, should not have the benefit of such record. But though a scire facias is a judicial writ, yet it is so far considered as an action, that a release of all actions is a bar to a scire facias.2

Form. Though there are several cases in which the writ of scire facias may be used, there is but one of them, namely, on a judgment, for which the form of the writ has been prescribed by statute. The form for this case is given in Stat. 1784. ch. 28. s. 2. But not

13 Mass. Rep. 193.

2 Co Litt. 290. b. Treviban v. Lawrence, 2 Ld. Ray. Rep. 1048. Grey v. Jones, 2 Wils. Rep. 251.