Clark v. Brown , 14 Mass. 271 ( 1817 )

Per Curiam.

The facts disclosed by the party summoned as trustee are not sufficient to show an assignment of the hides to Wilcox. The note or promise originally given to Noah Wells, for work and labor upon hides, was shown to the trustee by Wilcox in the presence of Brown, who deposited the hides for tanning; and the trustee thinks that he saw an endorsement upon the note. But there is nothing to show that Wilcox was purchaser of the hides but his own declaration. There is no evidence that any consideration was paid for them ; nor is there any instrument of convey anee which might prima facie prove the assignment.

This property, although not liable to attachment, because not removable without materially injuring it, is nevertheless subject to this process; because the trustee may, according to the statute, keep possession until the property is capable of removal without injury.

It is true, as laid down in the case of The Maine F. and M. Ins. Co. vs. Weeks & Trustee, cited in , the argument, that no one can be charged, unless he be liable in an action to the principal debtor, or have chattels in his possession, liable to be seized and sold on execution. This proposition is, however, applicable to the nature of the property, and not to the time or manner of the liability of the trustee. Thus one cannot be made trustee by reason of promissory notes deposited in his hands, because they cannot be taken in execution. Nor in the case referred to was there any breach of contract, by the supposed trustee, on which an action would lie. But where there is a debt actually due, although not payable, or where there is property deposited, which may after-wards be liable to be seized, it may be holden by this process; and provision is * made in the statute for a valuation of it, if it cannot be delivered on execution.

The equivocal manner in which the trustee in the case before us speaks of the endorsement of the note, when shown to him by Wilcox, forbids us from considering it as assigned; and even if the note for labor, viz., for tanning the hides, had been assigned, some further evidence would be wanted that the hides themselves had been fairly transferred.

Trustee charged.