
    Benjamin Russell versus Thomas Lewis and Another, and George Blake, their Trustee.
    How far one summoned as the trustee of an absconding debtor is. holden to disclose respecting the proceeds, or the rents and profits, of the real estate of the debtor in the possession of the supposed trustee.
    Me. Blake, the supposed trustee, having appeared in the court below, and submitted himself to an examination, was inquired of, by the plaintiff, —Whether the principal debtors, or either of them, or any person on their behalf, prior to the service of the process upon him, had conveyed to him any real or personal property ; — what consideration had been paid therefor; — whether such estate was conveyed to him on a trust, express or implied; — what was the nature of the trust; — what was the value of the property at the time of the conveyance, and at the time of the service of the process; —■ whether he had been in possession of it, and had received the rents and profits, and to what amount; — and whether the principal debtors had ever requested him to reconvey the property to them, and he had undertaken so to do.
    The trustee declining to answer these inquiries, so far as they had relation to real property,— Thatcher, for the plaintiff, contended that he was bound by law to answer the interrogatories, as put to him. The law plainly intends that the creditor availing himself of this process shall have the benefit of all the property of the debtor, so far as shall * be necessary to satisfy his claim. The statute, being remedial and intended to prevent a concealment of the property of debtors, should have a liberal construction.
    It is true that this Court has decided that, where lands of the debtor have been fraudulently conveyed; the grantee is not thereby made amenable to this process; and the reason given by the Court is sufficient, viz., that, nothing having passed by the conveyance, the land is still the debtor’s, and may be attached as his by the common and ordinary process of law. 
    
    In the case of Boardman vs. Roe and Trustee, 
       the effect of the answer, which must have been desired, would have been either to criminate the trus'ee, or to endanger his title to the land. But nothing of either of these is wished in the present case. If Mr. Blake is equitably obliged to account to the principal debtors, either for a part of the purchase, money for any cause retained by him, or for the rents and profits received by him, it cannot affect him injuriously to have the same properly and legally transferred to the creditor of those debtors. Suppose an original bona fide conveyance to him, and that, since that event, the grantors have a right to a reconveyance, is not this right effects in his hands? As the title is still fairly in him, and for a sufficient consideration, it cannot be attached by the plaintiff. Suppose the land to have been conveyed to the trustee for his indemnification as a surety for these debtors, and that the debt has been discharged by them, —or that the surety has paid it, but the lands pledged to him were of more value than the debt, — is it not reasonable that he should be held to account to the plaintiff for the surplus?
    
      Credits, as used in the statute providing this process, may arise out of real as well as personal property.
    In Harrison & Al. vs. The Trustees of Phillips Academy, 
       the Court intimate that a person, to whom land had been conveyed, without his knowledge, by his debtor, might be held as trustee for the surplus value of the land beyond the amount of the debt.
    * In Hatch vs. Smith and Trustee, 
       this objection was not taken, either by the counsel or the Court; although it was attempted to charge the trustees, in part, on account of real estate conveyed to them by the principal debtor.
    
      
      Blair, for the trustee.
    The trustee, having sworn generally that he has no goods, &c., in the words of the statute, cannot be held to answer these interrogatories. The case of Boardman vs. Roe and Trustee is relied on as deciding this point.
    A creditor ought not to be in a better situation than the grantor himself; yet the latter can never impeach his own conveyance, solemnly and voluntarily made.
    The form of the execution prescribed in the statute  shows plainly that lands of the debtor in the hands of the trustee are not considered liable to be held in this process.
    
      Thatcher, in reply.
    The general declaration of the trustee is not considered, when particular interrogatories are put. If he does not discharge himself by his answers to these, he is to be charged.  He will have opportunity to sell the real estate, and possess himself of the proceeds, before the return of the scire facias.
    
    
      
       5 Mass. Rep. 390, Howe vs. Field.
      
    
    
      
       13 Mass Rep. 104.
    
    
      
       12 Mass. Rep. 466.
    
    
      
       5 Mass. Rep. 42.— See, also, 3 Mass. Rep. 564, Pierson vs. Weller
      
    
    
      
      
        Stat. 1794, c. 65, § 5.
    
    
      
       4 Mass. Rep. 206.
    
   By the Court.

We consider that Mr. Blake is not obliged to answer all the questions put to him by the plaintiff, nor any which may tend to impair or impeach his title to any real estate which he may have derived from the principal debtors.

But we are satisfied that there may be cases where the person having the legal title to real estate may be answerable, as trustee, for the rents and profits, or for the proceeds of the estate if sold by him, in virtue of any written agreement or declaration of trust. And such interrogatories as may tend to show that he holds the estate in that manner, or that he has received any rents and profits, or proceeds of the sale of such estate so held, we think the trustee is obliged to answer; for his answers will not affect his legal title.

* So, if there should be a voluntary disclosure of a trust not committed to writing, the trustee may be chargeable on this process for any proceeds of such estate in his hands belonging to the cestui que trust; although we think he is not compellable to make such disclosure.

In the present case, the plaintiff may put his interrogatory, in the following form, to the supposed trustee, whom we shall hold bound to answer thereto. Is there any real estate in your possession, belonging to the said T. Lewis and J. Lewis, which you hold in trust for them, so that you are accountable for the rents and profits thereof? or are you under any obligation to account for the proceeds of the same, or of any part thereof, if sold by you ? 
      
       Vide Boardman vs. Roe and Trustee, 13 Mass. Rep. 104. It is an established rule in courts of equity that a defendant is bound to answer, unless the discovery may hav.ard his title in a case where in conscience he has at least an equal right with the person requiring the discovery, though that right may not be clothed with a perfect legal title. — Mit. Pl. p. 194, 4th Lond. ed. — Attorney-General vs. Duplessis & Al., Parker, 151. — At law, a witness is bound to answer where his answer may subject him to a civil action, or charge him with a debt. — 1 Phil. Ev. 277, 7th Lond. ed.— Stoddart, Lessee, vs. Manning, 2 H. & G. 147. — Gorham vs. Carroll, 3 Litt. 221.— Black vs. Crouch, 3 Litt. 226. — The 46 Geo. 3, c. 37, is merely declaratory of the common law. At the time of the passing of that act, when the general privileges of witnesses were much discussed, it was proposed to insert in the act a proviso, that no mortgagee, or bond fide purchaser, or possessor, of an estate, should be compelled to answer any question, the answering of which might probably tend to defeat his title, or incur a forfeiture of his estate. But this proviso was afterwards withdrawn. Whatever reason there may be for protecting a witness, in such a case, in an action at common law, where he has not the opportunity, or will not be allowed fully to disclose every thing necessary for his protection when not necessary for the cause on trial, there seems to be no reason why the rule adopted in courts of equity should not apply to one summoned in a process of foreign attachment, who can state every thing necessary to protect himself.
     