
    Thomas Locke versus John Tippets and his Trustees, William Whittemore, Amos Whittemore, and Edward Walker.
    Where A and B were summoned as the trustees of C, and pending the suit, C recovered a judgment against them, which they reviewed, giving bond, &c., and pending the review. A and B settled the action with C, by paying him the amount of the first judgment, witli double interest and costs, according to the condition of the review bond they were charged as trustees, notwithstanding such payment.
    This action was commenced by writ returnable to the Court of Common Pleas holden for this county, on the Monday preceding the third Tuesday of March, 1807; which writ was served on the principal the 26th of the preceding February, on W. &f A. Whittemore the next day, and on Walker on the 2d day of March follow ing. In this action the plaintiff demanded four several sums of money, due by four several promissory notes made by the defendant to the plaintiff. The action was duly entered and prosecuted, and the defendant, Tippets, was defaulted ; the two WJlitte- [ * 150 ] mores * then appeared and offered to answer, but it was agreed by them and the plaintiff, that the action should be continued against the trustees, until the determination of a suit then pending between Tippets as plaintiff and these supposed trustees as defendants. In this last suit judgment was rendered in this court November term, 1808, for Tippets against the defendants, who procured a stay of execution by giving bond to review in due form of law. The action was reviewed by writ returnable to the then next April term of this court, at which term it was entered and continued to the succeeding October term, 1809. This action of Locke against Tippets and his trustees, was continued from term to term in the Common Pleas, to September term, 1809, when Walker, one of the trustees, was defaulted, not submitting to an examination; and the two Whittemores,' upon their examination under oath, declared that the contract, on which Tippets had sued them, was not intended to be their personal contract, but an agreement on behalf of the Middlesex turnpike corporation; that a review of said action was still pending; and that they had no other goods, effects, or credits, belonging to Tippets, in their hands, when this process was served upon them. Upon this disclosure, by the judgment of the Common Pleas, they were discharged with costs against Locke, who had judgment against Tippets, and an award of execution against his body, goods, and estate, and against his goods, effects, and credits in the hands of Walker. From this judgment Locke appealed to this Court; and at last October term of this Court, the two Whittemores further disclosed on oath, that they had settled the action of review with Tippets by paying him the former judgment, with twelve per cent, interest, and double the costs of the review agreeably to the condition of the review bond.
    The question before the Court upon these facts was whether the two Whittemores were liable to be holden in this action as the trustees of Tippets, the principal defendant. *This [ * 151 ] question was argued at the last March term in Suffolk, the action having been continued nisi by Ward for the plaintiff, and Bigelow and Dana for the trustees.
    
      For the trustees
    
    it was said that they ought not to be charged, because they had never, since the service of the process upon them, had it in their power to retain the effects from Tippets, who demanded them by his action prior to the commencement of this suit; and for this they relied on the case of Howell vs. Freeman &f Trustee. 
       The trustees could not plead this attachment in bar of Tippets’s action against them, without acknowledging his right of action, and giving up a defence, on which they placed the most confident reliance, until they were undeceived by the decision of this Court.
    
      Ward
    
    insisted that the trustees had paid this money through their own folly. They had an opportunity to defend themselves against Tippets, and this is an answer to the case of Howell vs. Freeman. They might have had an opportunity to discharge themselves by plea to an action of debt, or to a scire facias, on the first, judgment; or on an action on the review bond. In the original action, they might have pleaded double, and thus have made their defence, and also have brought into Court the amount attached ; or, when they finally paid the money on the review bond, they might have deducted the sum due from Tippets to Locke. But they chose to adjust the business out of Court, with what intention it is needless to conjecture. But whatever was their intention, or whatever the inconvenience they may have brought upon themselves, the provisions of the statute are not to be thus evaded.
    
      
       3 Mass. Rep. 121.
    
   At the following November term in Suffolk, the action still being continued nisi, the decision of the Court was pronounced by

Parsons, C. J.

On the facts in this case, it is manifest that when the supposed trustees were attached, they had goods, [ * 152 ] effects, and credits of Tippets in their hands. * Their counsel have cited the decision of this Court in the case of Howell vs. Freeman and Frye, his trustee, as applicable to the circumstances of the case at bar. The principle decided in that case we consider as correct; but the application of it to the case under consideration may well be denied. The embarrassment, of which the trustees here complain, arises wholly from their own error. Had they formed a correct opinion, they would not have disputed Tippets’s demand against them, further than was necessary to deduct Locke’s demand against him. At the first term of the Common Pleas, Tippets by his default admitted Locke’s demand, and judgment might then have been entered in this suit; which judgment they might have satisfied, and then discounted it out of Tippets’s demand against them.

But if this measure was prevented by their too great confidence in their defence, they certainly, acted imprudently, when, submitting to Tippets’s demand, they paid the whole of the review bond, instead of deducting so much of the original debt, as had been attached in their hands on this suit. And if Tippets had refused to allow the deduction, and had put the bond in suit, this Court would have allowed it, on the same principle that they would have allowed a partial payment of the judgment to Tippets himself. If therefore the trustees, paying the money once to Tippets, and again to Locke, his attaching creditor, are driven to their remedy against Tippets, to recover back the money paid to his use, they must impute the inconvenience to their own mistakes or inattention ; for which they are to suffer, and not the plaintiff Locke, to whom no loches are chargeable.

Let the plaintiff have judgment against Tippets, and let all the trustees stand charged, and execution issue accordingly.  