of debts due to his debtor from third persons, or of property so deposited in their hands, that it cannot be reached by attachment in the usual manner.

As the law will not intend that a trustee has been in any fault, it is one of the fundamental principles, with regard to this process, that the trustee or garnishee shall, in no respect, be in a worse situation than if the payment was to be made agreeably to the original contract, to the principal debtor, the garnishee's immediate creditor; the trouble of being compelled to attend court as trustee being considered too slight to deserve any other notice or compensation than the allowance of costs, which in such case, are taxed in his favor, whether adjudged trustee or not, if he discloses seasonably.

The Rev. Stat. of Mass. ch. 109, therefore authorizes the plaintiff, in certain actions, to summon persons indebted to the defendant to appear and answer under oath, whether they have any goods or effects in their hands belonging to the debtor, or are indebted to him, and to give him notice that such goods, effects, or credits are attached in their hands to respond the final judgment which the plaintiff may recover against the defendant in the same suit. That no prejudice may result to the garnishee from thus being placed in a situation which he probably did not contemplate when he made the contract with his creditor, the defendant, it is provided in the same ch. 15, that the answers and statements sworn to by the garnishee, shall be considered as true, in deciding how far he is chargeable, but either party may allege and prove any other facts, not stated nor denied by him, that may be material in deciding that question.

From a regard to the security of the garnishee, it is also provided that no person shall be adjudged a trustee on account of any negotiable paper, to which he is a party. Because he might be put to great trouble, and perhaps suffer loss, if his creditor, the principal debtor, should negotiate the paper upon which he has been summoned as trustee.

For the same reason, it is held by the courts, that no one should be held as trustee, in any case, where he could not avail himself of the payment which he might make, as trustee, to the principal creditor, in any suit then pending, or which might afterwards be brought by the principal debtor, his own creditor.

These rules and principles being established as a foundation, it remains to consider: 1. In what actions recourse may be had to this.

process, under the statutes of this Commonwealth; 2. What debts or property is subject to it; 3. Who may or may not be held as

trustees.

§ 1. In what actions recourse may be had to this process.

By ch. 109, Rev. Stat. of Mass., § 1, all personal actions, brought either in the Court of Common Pleas, or the Supreme Judicial Court, may be commenced by process of foreign attachment, except replevin, case of malicious prosecution, or slander, and trespass for assault and battery.

§ 2. What debts or property is subject to this process.

The general rule is prescribed in chap. 109, Rev. Stat. § 4, that every person having any goods, effects, or credits, entrusted in his hands or possession, may be summoned as a trustee; and such goods, effects, and credits, shall be thereby attached and held to respond the final judgment in the suit, in like manner as goods or estate when attached by the ordinary process.

Where a mortgagee of goods is summoned as trustee of goods in his possession, the attaching creditor, under an order of court for that purpose, may be allowed to pay or tender the amount due the trustee, and the trustee shall thereupon deliver the goods to the officer who holds the execution. Ch. 109, § 25.

A debt not yet payable, but due without contingency, may be attached. Ch. 109, § 34.

A person in possession of any goods, effects, or credits of the debtor, by a title or conveyance, void as to creditors, will be held as a trustee, though the debtor himself could maintain no action against him. Ch. 109, § 35.

A debt or legacy, or other goods, effects, or credits of the principal debtor, may be attached in the hands of an executor or administrator. Ch. 109, § 62.

⚫ Under the same chapter, § 2, it is held, that the interest of an heir at law, in a distributive share of an intestate, in the hands of an administrator, is subject to the trustee process before a decree of distribution, and while it is uncertain whether there will remain any assets for distribution. Wheeler v. Bowen & trustee, 20 Pick. 563. So the interest of a husband in the wife's distributive share, is subject to the process of foreign attachment, in the hands of the administrator, at the suit of a creditor of the husband. Ibid. And such creditor has the same right that the husband has, of defeating

the wife's right of survivorship. This is a great hardship on the wife, however, and seems worthy of legislative consideration.

3. Who may or may not be held as trustees.

A party to a negotiable security, whether drawer, maker, acceptor, or indorser, shall not be held as trustee, on account of the money due on it. Rev. Stat. ch. 109, § 30.

A sheriff, or other officer, shall not be held as trustee, on account of money collected, or goods received by him, on an execution in favor of the principal debtor, even though after demand made by him on the officer. Ibid.

A public officer shall not be held as trustee on account of money for which he is accountable, as a public officer, to the principal defendant. Ibid.

A person shall not be liable as trustee, on account of a debt, unless, at the time of service of the process, it was due absolutely, and not on a contingency; (debitum in presenti, solvendum in futuro.) Ibid.

A person shall not be liable, as trustee, on account of a judgment against him in favor of the principal defendant, so long as he is liable to an execution on the judgment.

By ch. 109, 6, all corporations may be summoned as trustees, and shall answer by their cashier, treasurer, &c.

By 31 of the same chapter of the Rev. Stat. the defendant in any action, may be summoned as a trustee of the plaintiff in that action, before final judgment. The true construction of the phrase, “any action," however, does not seem clear. But it may be inferred, that it was not the intention of the legislature, that after an action had been commenced on a demand, on which the defendant would not have been previously liable to be summoned as trustee, he should become liable to the process of foreign attachment, by the act of instituting a suit against him by the principal debtor.

The promisor in a contract not negotiable, may be held as the trustee of the promisee before assignment of it. But after an assignment with notice to the promisor, the promisor, if he discloses the assignment, must be discharged. See 2 Mass. R. 524; 4 Mass. R. 450.

Where A's debtor has made an express promise to A's factor, to pay him the amount, he cannot be held as the trustee of A, lest he should be twice charged. 4 Mass. R. 259.

Where A promises to perform labor for B to a certain amount, A cannot be held as trustee of B, until after breach of the promise. 4 Mass. R. 170; 4 T. Rep. 102. Otherwise, of a contract to pay money or deliver goods, by a contract not negotiable, unless actually assigned with notice to the promisor.

Consignees of goods, after delivery of the goods, may be held as trustees for the freight, even after payment to the owners, with an agreement to refund in case the owners were not entitled to it. Because the master has a lien on the freight, even against the owners themselves. 11 Mass. R. 72.

Where there is a covenant to pay rent, the covenantor cannot be held as the trustee of the covenantee, until the rent has become due. The rent may never become due. Wood v. Partridge, 11 Mass. R. 488.

A person may be held as trustee, on account of property depos ited in his hands, though such property is not liable to be attached at that time; thus a tanner may be held as trustee of a person who has deposited hides with him to be tanned, though, while the hides are under the process of tanning, they are not subject to attachment. Clark v. Brown & trustee, 14 Mass. R. 271.

An attorney may be held as trustee of his client, for money collected. 12 Mass. R. 141.

An auctioneer, who has sold goods for a sheriff, cannot be held as trustee for the proceeds, but is accountable to the sheriff only. 6 Mass. R. 116.

A, having moneys of B, C, and D, cannot be held as trustee of C, D, and E. 9 Mass. R. 490.

An agent of a foreign Insurance Company, is not a trustee for the amount of a loss sustained by the insured. 8 Mass. R. 504.

A, being indebted to B, gives him a deed of real estate as security; B sells the land for more than the amount of the debt; he may be held as trustee of A, for the balance; but he cannot be held as trustee until the land is sold. 3 Mass. R. 564.

The grantee in a fraudulent conveyance does not thereby become the trustee of the grantor. 5 Mass. R. 391. Because the conveyance is void, and the land itself may be levied upon.

Where a debtor holds a joint contract against two or more, and his creditor would avail himself of the benefit of this contract under a foreign attachment, he must summon all the parties, liable by

law to discharge it. See the opinion of Parsons C. J. in Jewett v. Bacon, 6 Mass. R. 62.

Where a creditor of one of the partners of a copartnership is desirous by this process to appropriate to the payment of his debt, a debt due to the partnership, he ought, beside the partnership debtor, to summon one of the partners as trustee; and if on the examination of such partner, it should appear that the principal debtor has an interest in the partnership effects, after their debts are all paid, that interest may be secured by foreign attachment. 6 Mass. R. 271.

A person summoned as trustee on account of specific articles in his possession, is entitled to retain the possession of them against an officer, who attempts to attach and remove them specifically, and, if they are taken from his possession, may inaintain trespass against the officer for taking and carrying away the goods. Rockwood v. Var

num, 17 Pick. 289.

But, it seems, such trustee is under no obligation to commence an action against the officer, unless he is indemnified for so doing. Ibid. And by what right can he be compelled to commence a suit, if indemnity should be offered to him? It would seem sufficient, if he were willing to authorize the party injured to prosecute at his own risk and for his own benefit.

Where it appears, from the answer of the trustee, that he is answerable for some amount, he will be charged as trustee, and the amount will be determined on scire facias, if the trustee does not pay over as much as the creditor thinks him bound to pay. Winchester v. Titcomb & trustees, 17 Pick. 435.

The manner of serving the trustee process is particularly pointed out in chap. 109, Rev. Stat. of Mass.; also ch. 210, stat. of 1837. A trustee writ may be abated as to the trustees, for defective service as to them, and yet remain good as respects the principal debtor, it being settled that it shall not be abated as to the principal, on the ground of a defect in the service upon the trustee. Thayer v. Ray, 17 Pick. 166.

In such case, the trustee may plead in abatement, in his own name, without answering. Ibid.

Where an inhabitant of Massachusetts commenced an action against an inhabitant of Rhode Island, and his trustee, a transient person within the Commonwealth, and no other attachment was made than that of the debt due from the garnishee to the principal debtor, the court dismissed the action on motion of the counsel of the principal debtor, the garnishee disclosing that he was an inhabitant of another State. Nye v. Liscombe & trustees, 21 Pick. 263.