Hancock v. Colyer , 99 Mass. 187 ( 1868 )

Colt, J.

The check of a third party payable to the order of the supposed trustee is not attachable by trustee process. It is not money, goods, effects or credits, in the sense of the statute. It may never be paid. The liability of the trustee to the principal defendant is therefore contingent. If the transaction between the parties is such as to create a debt due absolutely whether the security held be good or not, the trustee would then be charged. Wood v. Partridge, 11 Mass. 488. Lupton v. Cutter, 8 Pick. 298. Meacham v. McCorbitt, 2 Met. 352. Lane v. Felt, 7 Gray, 491. It would seem that a check before presentment cannqt operate as an assignment of the fund, or create any lien upon it in the drawee’s hands. Dana v. Third National Bank, 13 Allen, 445.

It is attempted to distinguish this case from Lane v. Felt on the ground that the check was received as money by direction of the plaintiffs in the suit of Colyer & wife v. Hancock, and that it was paid to the supposed trustees after service. As to the first, the answer does not show that it was taken as money. As between the trustees and the principal defendant all that appears is, that by direction of those plaintiffs it was received in satisfaction of the execution. The trustees were not in any manner to be liable in the event of the check proving worthless, said Colyer taking all the risk of its collection. The other ground of distinction cannot prevail against the well settled rule that the validity of the attachment must be determined by the state of facts existing at the time of the service of the writ. Meacham v. McCorbitt, 2 Met. 352. Trustees discharged.