
    Thomas Curtis versus Edward Norris and Trustee.
    H having in his hands goods of N for sale, on which H had made advances, N requested him to pay out of the proceeds of the goods a bill drawn by N which had been dishonored, and to inform S & Co., who had accepted the bill for the hon- or of an indorser, of this request. H accordingly informed S & Co. of this request, and promised them verbally to pay the amount of the bill as soon as he should be in funds from the proceeds of the property. H having been summoned in foreign attachment, as the trustee of N, it was held, that S & Co. had acquired a claim against H for the funds in his hands, and that he was therefore chargeable as trustee of N, only for the balance in his hands after deducting his advances and the amount of the bill.
    The answers of John A. Haven, who was summoned as trustee, disclosed the following facts.
    In the latter part of July, 1828, Haven received a quantity of molasses from Norris, the defendant, for sale on his account, on which Haven had advanced 2581 dollars before the service of the writ, which was on September 4, 1828. Some time in August, 1828, Norris informed Haven, that a bill which he, Norris, had drawn in the West Indies on Thomas Curtis and Isaac Hall for about 500 dollars, had been dishonored by them, and that William B. Swett & Co. had accepted for the honor of Alphonso Knight & Co. the first indorsers ; Norris, therefore, requested Haven to call on Swett & Co. and inform them that he had property of Norris in his possession, and also requested Haven to pay the amount of the bill out of the proceeds of the property, and to inform Swett & Co. of this request. The bill in question was accepted by Swett & Co. July 3, 1828. Haven accordingly soon after called on Swett & Co., and informed them of Norris’s request, and engaged to pay the amount of the bill so soon as he should be in funds from the proceeds of the molasses. Soon after, and three or four weeks, as Haven thinks, before the service of the plain tiff’s writ, he called on Swett & Co. for the purpose of accepting the bill, but it was not in their possession. On the 4th of September, Tascar H. Swett, one of the firm of Swett & Co., called at Haven’s store, and informed him that the bill was due on that day, which was the fact, and asked him to pay it. But Haven replied that the molasses was still on hand, and he could make no further advance in cash, but that he would take up the bill by giving his note payable in sixty days. Swett declined accepting this proposal, and afterwards on the same day paid the bill himself. Two hours after this, Haven was summoned in this suit. Swett & Co. on the same day, after paying the bill, had a writ made out against Norris as principal and Haven as trustee, but the writ in this case and anothei writ having been served on Haven before their writ could be served, they did not have it served.
    
      June 12th.
    
    Haven supposed the molasses to be worth about 1000 dollars more than he had advanced upon it.
    The question for the Court was, whether the amount of the bill taken up by Swett & Co. as well as Haven’s advances, should be deducted out of the funds in the hands of Haven, and he be chargeable as trustee for the balance only; or whether nothing should be deducted but his advances.
    
      Morey, for the plaintiff,
    contended that the circumstances of the case did not show any acceptance of the bill by Haven, or any obligation from him to Swett & Co. which they could enforce. Swett & Co. did not think they had any claim against Haven ; and whatever claim they might have had, was waived, by their suing out a trustee writ against him. Smith v. Field, 5 T. R. 403.
    
      Nichols, for the trustee,
    cited Hodgson v. Anderson, 3 Barn. & Cressw. 842; Adams v. Robinson, 1 Pick. 461; 
      Crocker v Whitney, 10 Mass. R. 316; Mandeville v. Welsh, 5 Wheat. 286 ; Hall v. Marston, 17 Mass. R. 575; Farley v. Cleveland, 4 Cowen, 432 ; Jennings v. Webster, 7 Cowen. 256.
    The opinion of the Court was afterward drawn up by
   Parker C. J.

According to the disclosure of Haven, he is at all events the trustee of Norris the defendant; and the question is, whether he is answerable for the whole balance of the consignment to him, deducting his advances, commissions, &c. ; or, whether there should be a further deduction for the amount of the bill drawn by Norris on Hall and Curtis, which being dishonored by them was accepted by Swett 6 Co. for the honor of Knight & Co., the first indorsers of the bill.

The question presented by the disclosure of the trustee is, whether the direction of Norris, the owner of the funds, to Haven his factor, communicated as it was to Swett & Co., was an assignment of so much of the funds to Swett & Co., as would discharge the bill accepted by them, or whether Haven had come under such obligation to Swett & Co. to take up the bill, as would give them a right of action against him for not performing this engagement. At the time of Norris’s direction to Haven, he was equitably indebted to Swett & Co., they having accepted his bill, though not at his request, yet for his benefit and to preserve his credit as well as that of the indorsers. He was bound, morally, as well as by mercantile hon- or, to provide funds to meet that engagement. He discharged his duty by his direction to his factor. Nothing more was necessary to make the appropriation of the funds complete, than for Swett & Co. to have notice of it and to assent to it. This was done, Haven having given the notice and having expressly engaged to pay the bill from the funds thus appropriated. The assent of Swett & Co. must be presumed ; for it was for their benefit, and they did not dissent, but on the contrary took no measures to secure themselves, or the friends for whose honor they accepted, relying for the due discharge of’ the bill, upon the direction of Norris and the engagement of Haven. Haven was liable to an action upon this promise, and the funds could have been recovered to indemnify Swell & Co.

It is said that all this passed without writing ; but that is no objection, as the statute of frauds cannot apply to the case. In the case of Crocker v. Whitney, 10 Mass. R. 31C, it is strongly intimated, that an assignment may be good without writing; and the case of Hall v. JWarston, 17 Mass. R. 575, is of a similar character ; and they are supported by the English cases. The principle of the decision in the case of Van Staphorst v. Pearce, 4 Mass. R. 258, is strongly in support of this position. A late case in England, Hodgson v. Anderson, 3 Barn. & Cressw. 842, is still stronger to the-same point. It is therein expressly decided, that an assignment of a debt to pay a creditor, if assented to by the party owing, is valid though it be not in writing.

We think the acts of Swett, ignorant probably of his legal rights, do not bear upon the question in any other way, than as showing that he did not assent to the arrangement between Norris and Haven ; but they fail to prove this, as he no doubt acted under a fear, that what had been done might be defeated by the processes of the other creditors. 
      
       See Collins v. Wescott 5 Fairfield, 193.
     