
    Samuel M. Frothingham versd s James Haley and Emery and Matthew Cobb, their Trustees. Levi Cutter versus Same. James C. Bullard versus Same.
    A debt payable at a future day upon a contingency is not subject to a foreign attachment within the tenth section of the statute.
    These three actions were pending in Cumberland, and the question before the court was the same in each, and depending on the same facts disclosed by Mr. Cobb, the trustee, on his examination, viz., whether, at the time of the several processes being served on him in the respective actions, he was the trustee of the principal defendants.
    Those facts were in substance as follows:—Haley and Emery, on trie 26th day of October, 1805, were indebted to Cobb in the sum of 1074 dollars, on two several promissory notes. * On the same day they drew a bill of exchange, in favor of [ * 69 ] Cobb, on Bigelow and Proud, merchants at Baltimore, for 1500 dollars, payable at thirty days’ sight, Cobb giving them a receipt promising to account with them for the amount of the bill when received, they paying all expenses attending the collection. The bill was forwarded by Cobb to his agents at Baltimore, and presented by them for acceptance on the 9th day of November, 1805, and refused. On the 9th day of December following it was presented for payment, and then accepted by the drawees to be paid on the 20th day of January, 1806, and was in fact paid to the said agents on the 23d day of the same January. Cobb gave notice to the drawers of the refusal of the drawees to accept on the first presentment, and of their after-acceptance, as he received advice thereof respectively, and they discovered no dissatisfaction at the latter circumstance. Cobb was summoned by Bullard and Cutter between the time of acceptance and payment of the bill, and by Frothingham on the day on which the bill was paid.
    At the last May term at Portland, Mellen, of counsel for Bullard and Cutter, contended that Cobb, by receiving the enlarged acceptance from the drawees, instead of protesting the bill for non-payment, as was his duty, had exceeded his authority, had prevented the drawers from taking measures to secure themselves, and in effect had discharged them, and had become absolutely accountable to them for the amount of the bill.
   The actions were continued nisi for advisement; and now the opinion of the Court was delivered, as follows, by

Parsons, C. J.

In these actions the trustee at the first term came into Court and submitted to answer interrogatories. The defendants since have been defaulted, and the question for the consideration of the Court arises on the answer of the trustee. If at the time of serving on Cobb the original writs or either of them, he had not in his hands any goods, effects or credits of the defendants, he must be discharged ; otherwise execution must be awarded against their goods, effects and credits in his hands. [Here his honor recapitulated the facts disclosed in Mr. Cobb’s answer, as above stated, and proceeded.]

* The counsel for Bullard and for Cutter insist that [ * 70 ] Cobb had in his hands effects and credits at the times of the service of their several writs; that his agents, on the 9th of December, 1805, the time the bill was payable, by their not protesting it for non-payment, and by taking a new acceptance to pay in twenty days, made him absolutely answerable to the defendants for the amount of the bill on that day.

AVe are not satisfied that the conclusion thus drawn from the facts disclosed is correct. In this transaction Cobb was merely an agent for the defendants, until the money was received. No unfaithfulness or negligence can be charged upon him. The bills had been protested for non-acceptance; and it appears that by taking the enlarged acceptance, the money was finally recovered. But Cobb gave the defendants notice of the enlarged acceptance, who made no objection to it, and appeared satisfied with the conduct of the agent. This fact is conclusive, for it is equivalent to a precedent authority.

We have also considered *his question in another view. From the 10th section of the statute, under which these processes are brought, it appears that a debt due at the time of the service of the writ, but payable afterwards, is considered as effects and credits liable to be attached in the hands of the debtor. If a contract to pay money at a future day, on a contingency, may be considered as effects and credits liable to attachment, and execution may be awarded against them in the hands of the trustee, provided after the attachment the contingency happen, so that the money is in all events to be paid, then Cobb may be considered as trustee from the time he received the bill; for he then promised the defendants to account for the money, if received. But on reflection we are satisfied that a contract to pay money on a contingency is not effects or credits liable to attachment. The debitum in prcesenti, sohendum in futuro, that is liable to attachment, must be an absolute, and not a contingent debt. That this is the meaning of the statute is evident from the 6th section. It is there provided that when a trustee has been examined on oath in the original suit, he shall not be again examined on the scire facias, if on the examination [ *71 ] it appeared that he had effects in his hands; but * judgment on the scire facias shall be rendered on the first examination. Now, a trustee may owe the principal a debt absolutely, and he may also be holden to pay him another sum of money on a contingency, which had not been determined at the time of the examination. Before the scire facias he may be discharged from the contingent debt, the event never happening to make him absolutely liable; and yet judgment in this case on the scire facias must be rendered on the first examination. Therefore, to prevent injury, ,he statute must be so construed as to exclude from the effects and credits made liable to attachment contingent debts, which may never become payable.

It is therefore our opinion that Cobb had in his hands effects and credits of Haley and Emery on the 23d day of January, 1806, when the money was paid, and not before. In the actions sued by Bullard and by Cutter, he must be discharged and have his costs, because their writs were served on him before that day; but in the action sued by Frothingham, he must be adjudged trustee of the defendants . 
      
      
        [Davis & Al. vs. Ham Al. & Trustee, ante, 33.—Willard vs. Sheafe, 4 Mass, 235.—Wood vs. Partridge, 4 Mass. 488.—Thorndike vs. De Wolf 6 Pick. 120.—Revised Laws, ch. 109. § 30.—Ed.]
     