Sebor v. Armstrong

Per Curiam. We are called upon to decide if Mr. Winthrop shall, upon the facts disclosed by him on his examination, be adjudged the trustee of Armstrong. By the third section of the statute of 1794, c. 65, which gives this process, any person summoned as a trustee shall be so adjudged, unless he declare on oath that he had no goods, effects, or credits, of the principal, when the writ was served on him. By the twelfth section it is provided, among other things, that no person shall be adjudged a trustee, on account of his having accepted any negotiable security. [*208] *Mr. Winthrop, on his examination, declares that he had accepted a drought on him from one B. W. in favor of Armstrong, the principal, for 1800 dollars; and that, when the writ was served on him, he had not paid that drought, but had sufficient funds of B. W.’s in his hands. On this declaration there is no doubt but Mr. Winthrop is the trustee of Armstrong, he owing him 1800 dollars on an accepted drought. But in this declaration he adds [187] that he thinks the drought was payable to Armstrong or his order If the accepted drought was negotiable, Mr. Winthrop is protected by the twelfth section of the act above cited. But he must be positive as to this fact. He has had time to inquire, and he does not move the Court for leave to make any further declaration on this point. If the trustee, in whose knowledge the fact ought to be, is doubtful, the Court cannot make any presumption in his favor. Mr. Winthrop must be adjudged the trustee of Armstrong.