Richards v. Stephenson , 99 Mass. 311 ( 1868 )

Foster, J.

A party summoned as trustee is to be discharged, unless it affirmatively appears by his answers, aided by the collateral proofs, that he is chargeable. Porter v. Stevens, 9 Cush. 530. The exception to this rule is, when the answer admits enough to make the trustee primd facie chargeable, and then states some special matter in avoidance. Lane v. Felt, 7 Gray, 491. A trustee cannot be held liable, when he does not appear ever to have been the debtor of the defendant.

In the present case, it is clear that extrinsic evidence might have been offered by either party to show whether the note, when paid to the Suffolk Bank, was owned by the defendant or by the bank in Portland which sent it to Boston for collection. Gen. Sts. c. 142, § 11. So also the Portland bank might have been summoned as claimant. § 15. In this way the rea! question in controversy would have been tried more fully, and determined more satisfactorily, than it can be upon the trustee’s answers alone. But it was quite as much the duty of the plaintiff as of the trustee to take active measures to bring the Portland bank before the court as a claimant.

We are of opinion that the single fact, that the note does not appear to have been indorsed by the defendant, who was the original payee, is insufficient to overcome the effect of the trustee’s general denial of liability, together with the statements that the note was transmitted for collection by the bank in Portland with directions to credit it, when paid, to the account of that bank, and that the defendant has never claimed the proceeds or had any communication with the Suffolk Bank in regard to the note.

The judgment of the superior court is affirmed, and the

Trustee discharged.