judgment and execution; and he has no greater right to charge these goods with a debt of his own, by way of set-off, than he would have had, if the good had been taken into custody by the officer at the time of service." And in case of an assignment of property in trust for the payment of debts, under the statutes regulating that subject, the assignee may, after the expiration of six months from the publication of notice of the assignment, be made trustee, where there is a surplus in his hands.2 So a lessee of personal property may be made trustee." 2. Credits. The statute here affects another species of property from that last considered, and accomplishes its purpose in an entirely different mode. The only question is, whether the trustee owed the principal debtor any thing at the time of the service of the original writ upon him, and if it appears that he did, he is held liable to pay it to his creditor's creditor, instead of paying it to the debtor himself.* To determine this question, the magistrate will take into consideration the nature of the debt, whether absolute or conditional; whether in the form of a judgment, negotiable note, account, or otherwise; what claims, liens, or rights of set-off the trustee may have upon or against it, whether it is barred by the statute of limitations, or affected by the statute of frauds; by whom and to whom it is payable, whether by the trustee alone or with some other jointly, and whether to the principal defendant alone, or with some other jointly; whether the claim has been assigned by the principal defendant, if an assignment is disclosed; and whether legal process has been commenced to recover the same of the trustee, if such process is disclosed. For the same grounds of defence are open to the trustee in this process which would have been open to him in a suit by the principal defendant; and if he is charged, the judgment in this suit is to protect him against a future suit by the principal defendant for the same matter pro tanto. The debt must be a debt for money or other thing due absolutely, and not upon a contingency, but if it be due in presenti, it is attachable, though payable in futuro." It must neither be in the form of a promissory note or judgment. It should also be due to the defendant 15 Met. 265, 267. 2Act of 1850, ch. 113, sec. 5. 3Cush Tr. Pr. § 57. 45 Met. 265. SR. S. ch. 119, secs. 63, 67. or defendants, and not to him or them jointly with others not parties to the suit.1 The rule is otherwise, however, in regard to the trustees themselves. A disclosure of an indebtedness to one of several defendants charges the trustee. In the case of a partnership, one or more partners residing without the State, it is sufficient to serve the process on one of the partners, in order to hold the funds of the principal debtor in the partnership's hands. But the demand must not be one due from the trustee as a public officer, sheriff, or guardian to ward. The trustee has a right to avail himself of all legal liens and rights of set-off, and also of all legal defences which he might have against the principal defendant. If legal process be commenced against him by the principal defendant for the recovery of the same demand, and judgment recovered before the question of charging or discharging him is settled, he is entitled to be discharged. And an assignment of the demand by the principal defendant, made in good faith, before an attachment by trustee process, though without notice to the debtor, would give the assignee a title preferable to that of the attaching creditor; and such assignment, being seasonably made known to the trustee, and being disclosed by him in his answer, would also entitle him to a discharge. And when the debt of the trustee is one drawing interest, he is not chargeable with interest after summons, unless it appears affirmatively that he was not then ready to pay.' 6 • Of facts neither stated nor denied. Either party may allege and prove any other facts, not stated nor denied by the supposed trustee, that may be material in deciding the question. 8 The magistrate should always remember that a party can be allowed to go into the proof only of matters that are neither stated nor denied by the trustee. That no evidence aliunde can be received to contradict, aid, or explain the trustee's answer, is the law both by statute and a long current of decisions. But when the trustee is ignorant of any fact, and so states in his answer, a party may then go into the proof. But it is presumed that it should first appear affirmatively in the answer, that the trustee neither states nor denies the alleged fact. 16 Mass. 271. 213 Maine, 420. 316 Mass. 299. 45 Met. 266. R. S. ch. 119, sec. 65. 64 Met. 598. 718 Maine, 332. R. S. ch. 119, sec. 33. 12 Pick. 386. Of an assignment disclosed. When it appears, by the answers of any person summoned as a trustee, that any effects, goods or credits in his hands are claimed by a third person, in virtue of an assignment from the principal debtor, or in some other way, the justice may permit such claimant, if he see cause, to appear and become a party to the suit, and maintain his right.' The assignment, in such case, may be in writing or by parole. Should such claimant not appear voluntarily, notice may be issued and served upon him, in such manner as the justice may direct.3 If any such claimant shall appear, as before provided, he may be admitted as a party to the suit, so far as it affects his title to the goods, effects or credits in question, and may allege or prove any facts, not stated nor denied by the supposed trustee, and such allegations shall be tried and determined, in the manner before provided.* Upon any trial, between the attaching creditor and any other person claiming the same effects, in the manner before mentioned, the principal defendant may be examined as a witness for either party, if there is no other objection to his competency, except his being a party to the original suit." If such assignee, having been duly notified, shall not appear in person or by attorney, the assignment shall have no effect to defeat the plaintiff's attachment. It is too late to summon in the assignee after the case has been argued and presented to the court." All testimony relating to the additional allegations of any party in such trial, shall be given by depositions taken and filed in the usual Proceedings in case of death or marriage of trustee. If any person who is summoned as trustee in his own right, die before judgment, if any, recovered by the plaintiff, shall be fully satisfied, the goods, effects and credits, in his hands at the time of the attachment, are held thereby, and his executors or administrators shall be liable therefor, in like manner, as if the writ had been originally served on them." 1R. S. ch. 119, sec. 35. 28 Pick. 280. 3R. S. ch. 119, sec. 36. 4Ib. sec. 37. Ib. sec. 39. Ib. sec. 38. Ib. sec. 44. If the person shall die before judgment in the original suit, his executor or administrator may appear voluntarily, or may be cited to appear, in the same manner as is provided in case of death of a defendant in a common action; and the further proceedings shall then be conducted in the same manner as if the executor or administrator had been originally summoned as trustee, except that the examination of the deceased, if any had been taken and filed, shall have the same effect as if he were living.1 If, in such case, the executor or administrator shall not appear, the plaintiff, instead of suggesting the death of the testator or intestate, may take judgment against him by default or otherwise, as if he were living; in which case, if the executor shall not voluntarily pay the amount in his hands, the plaintiff may proceed by writ of scire facias against him. If any person, against whom execution shall issue as trustee, shall not be living at the expiration of the thirty-days after final judgment, within which it is required by law that demand be made on the trustee, demand may be made upon the executor or administrator.3 In the cases we have been speaking of, execution is not to be served on the goods or estate of the executor or administrator, nor on his person, but he is liable to the plaintiff in like manner, and to the same extent, as he would have been to the principal defendant, if there had been no trustee process.* Where a feme sole, summoned as a trustee, marries before judgment, it is not necessary to cite in the husband, but he is bound by the judgment which may be rendered." In what county trustees may be required to appear. We have already seen, that the action must be brought in the county where one of the supposed trustees lives. If the trustee be a corporation, the residence of the corporation is in the county in which it has its established or usual place of business, or in which it shall have held its last annual meeting, or shall usually hold its meetings. The statute of 1842, permitting actions to be brought in any county where one of a number of defendants live, is understood to permit actions to be brought in any county in which any trustee lives." 1R. S. ch. 119, sec. 45. 2lb. secs. 46, 47. 3Ib. sec. 48. 4lb. sec. 49. 55 Green. 443. R. S. ch. 119, secs. 5, 88. When a trustee, at the time the writ is served upon him, dwells in any county, other than that where the writ is returnable, the justice is required, in case of his discharge, to allow him, in addition to his legal fees, a reasonable compensation for his time and expenses in appearing and defending himself.1 A person summoned as trustee, resident out of the county where the suit is pending, is not liable for any costs. Nor is such person required to appear in person in the original suit, or in a suit on scire facias; but he may appear by attorney, and declare whether he had any goods, &c. of the principal in his hands; and thereupon offer to submit himself to examination on oath. If the plaintiff proceed no further, such declaration shall be considered as true. If the plaintiff think proper to examine him upon oath, the answers may be taken before a justice of his own county." It may be well to add, in this connection, that in the case last mentioned, the justice ought to proceed with the action, although the trustee is discharged, and although neither plaintiff nor defendant reside in his county, unless it appear by plea in abatement, that the trustee was collusively included in the writ for the purpose of giving the court jurisdiction.* If, after a judgment has been rendered in a trustee process, the defendant removes out of the county, the justice may issue execution against the trustee, directed to the proper officer of any other county, where he may be supposed to reside. For proceedings on scire facias against trustee, see SCIRE FACIAS. II. 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 show cause why the party bringing it should not have the benefit of such record." It can issue only from the court having the record on which it is founded." Every justice of the peace may issue scire facias against executors or administrators, upon a suggestion of waste, after judgment against 1R. S. ch. 119, sec. 21. 21b. sec. 24. 3Ib. secs. 27, 28, 29. *Ib. sec. 96. Ib. sec. 95. |