Williams v. Marston

20 Mass. 65

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1825
• Status: Published

Opinion

Parker C. J.,

in giving the opinion of the Court, said in substance, that when the writ was served, it was contingent whether Baker would become indebted to Marston, as the price for which the fruit was sold had not been received.¹ His acceptance of the order was not an acknowledgment of an actually existing debt, as he might depend on being indemnified out of the money which he was about to receive. In this view of the case it became unnecessary to consider the effect of the order upon the trustee process, in case a debt had existed at the time of the service of the writ. A payment made bond fide without knowledge of the service ought to be in justice, and we think it would be in law, protected. So a negotiable note or acceptance, if negotiated before notice of the service, would probably be saved. From the circumstances disclosed however in this case, we are inclined to think Baker would be liable if he had had funds in his hands, for he knew that Thacher had been summoned as trustee and that the order was a contrivance to help Marston to defeat his creditors.¹

Trustees discharged.

1 See Faulkner v. Waters, 11 Pick. 474; Willard v. Sheafe, 4 Mass. R. 235 Thorndike v. De Wolf, 6 Pick. 120; Tucker v. Clisby, 12 Pick. 22; Rundlet v Jordan, 3 Greenl. 47; Staples v. Staples, 4 Greenl. 532; Sayward v. Drew, 6 Greenl. 263; Coit v. Bull, Kirby, 149; Kidd v. Shepherd, 4 Mass. R. 238. But an unadjusted claim for a loss on a policy of insurance is subject to the process of foreign attachment. Knox v. Protection Ins. Co. 9 Connect. R. 430.

1 It is now settled, however, that if a debtor, at the request of bis creditor, in order to avoid being summoned and charged on the trustee process, gives his own negotiable note to the creditor for the amount due, be will not be chargeable as the trustee of the creditor. Wood v. Bodwell, 12 Pick. 268. See Dennie v. Hart, 2 Pick. 204.