Cushman v. Haynes , 37 Mass. 132 ( 1838 )

Shaw C. J.

delivered the opinion of the Court. The trustees having acknowledged that they had goods in their hands, of the principal defendant, at the time of the service of the writ, they must stand liable, unless they are discharged by their acceptance of the order of the principal defendant.

By the general trustee act, St. 1794, c. 65, § 12, it is provided, that no person shall be adjudged trustee, by reason of his having made, given, indorsed, negotiated or accepted any negotiable security whatever.

This statute is not directly applicable, because the case does not seek to charge the respondents by reason of their having made, indorsed or negotiated any negotiable security. They admit that they had effects in their hands at the time of the service, consisting of goods to be sold on commission, and on which they had made advances ; and they seek to discharge themselves on the ground of having accepted a negotiable security, for the proceeds. Under the obvious policy of the statute, if they had accepted such negotiable security, they ought to be discharged ; otherwise they might be made twice liable for the same debt, once to the attaching creditor, and again to the holder of their acceptance. But we are of opinion, that the acceptance, not being for a sum certain, but for an uncertain amount, to wit, the balance of the proceeds of goods not then sold, was not negotiable. When the trustee process was served, the goods were not sold, and it was uncertain whether they ever would be ; and it was also uncertain whether they would sell for a sum sufficient to repay the advances and leave a balance. The order was drawn and accepted before the service of the writ, and of course before the goods were sold. It not being a negotiable security, the trustees would not be liable to an action upon it by an indorsee, and it did not amount to payment or an advance.

This order and acceptance could not operate as an assignment, not being made to a third person ; an assignment by the principal, of a chuse in action, to such person as he should afterwards name, is, in effect, an assignment to himself, and as such a mere nullity.

Trustees charged on their answers.