Toothaker v. Allen , 41 Me. 324 ( 1856 )

Cutting, J.

The trustee, in his introductory and general answer, denies, in the language of the statute, all liability as the trustee of the principal defendants, at the time of the service of the process upon him. But such a denial must be considered in the nature of a plea, which is to be sustained by answers to interrogatories propounded by the plaintiff, if he seeks an investigation and gives the trustee a full opportunity to disclose the true business relations subsisting between himself and the defendants; otherwise the trustee would be constituted the judge of the law as well as of matters of fact, with the exclusive privilege of drawing inferences and conclusions, which more properly belong to the Court. The trustee has had such an opportunity, and his disclosure of facts is vague and unsatisfactory, tending to show either that he covers the defendants’ property, or that he may be indebted to them. If he keeps accounts, he should have stated them, or have given some sufficient reason for his neglect. Sebor v. Armstrong & Trustee, 4 Mass. 206; Shaw v. Bunker, 2 Met. 376. He may have been indebted to his brothers to the amount of hundreds of dollars, from any thing which appears to the contrary in his disclosure, and still have eluded the charge of perjury. On scire facias, perhaps, he may have another opportunity of disclosing a more definite state of facts. Exceptions sustained and Trustee charged.

Tenney, C. J., and Rice, Appleton, and May, J. J., concurred.