
    * Benoni Clark versus Barzillai Brown and Leni Roys, his Trustee.
    One may be holden as the trustee of another, on account of property in his possession, although such property may not be liable to be attached on mesne process, or seized in execution, [at the time of the service of the writ — Ed.]
    The .question which came before the Court in this case was, whether the said Roys, upon his answers to the usual interrogatories, was chargeable as the trustee of Brown, the principal debtor.
    The said Roys stated that, about six years ago, he gave to one Noah Wells a promise in writing for the tanning of fifty cow-hides into leather of different descriptions. The said note, not long after the date of it, fell into the hands of the said Brown, with whom Roys treated for its payment. Whether Wells endorsed the note to Brown, or in what manner it became his property, Roys did not know. In May or June, 1816, Brown brought and delivered to Roys fifty hides to be tanned. At the time of the service of the summons in this case, the hides were in the vats, in the process of tanning. Before the said service, one Jacob Spoor, who said he was the agent of Reuben Wilcox, called on Roys, and notified him that said Wilcox was the owner of said hides and holder of said note ; but he did not show to Roys the note, or any instrument assigning the same or the leather. Afterwards, and after the ser vice of the summons, Wilcox, in presence of Brown, again notified him that he held, and was owner of, said note and hides ; that Brown had, in April, 1816, assigned the same to him; and he showed him the note, which Roys says he thinks contained an endorsement by Brown, transferring the same. Since the tanning of the hides was completed, and since the service of this process upon him, Roys delivered to Wilcox the greater part of the leather, for the tanning of which Wilcox gave him credit on his said note.
    
      Howe, for the plaintiff,
    cited the cases of Sebor vs. Armstrong & Trustee, 4 Mass. Rep. 206. — Foster vs. Sinkler & Trustee, Ibid. 450.
    * Whiting and Bernard, for the trustee,
    cited the cases of Wrigley vs. Geyor & Trustee, 4 Mass. Rep. 102. — Maine F. and M. Ins. Co. vs. Weeks & Trustee, 7 Mass. Rep. 438. — Bond vs. Ward, Ibid. 123.— Wood vs. Patridge, 11 Mass. Rep. 488. — Gordon vs. Webb & Trustee, 13 Mass. Rep. 215. — Dix Al. vs. Cobb & Trustee, 4 Mass. Rep. 508.
   Per Curiam.

The facts disclosed by the party summoned as trustee are not sufficient to show an assignment of the hides to Wilcox. The note or promise originally given to Noah Wells, for work and labor upon hides, was shown to the trustee by Wilcox in the presence of Brown, who deposited the hides for tanning; and the trustee thinks that he saw an endorsement upon the note. But there is nothing to show that Wilcox was purchaser of the hides but his own declaration. There is no evidence that any consideration was paid for them ; nor is there any instrument of convey anee which might prima facie prove the assignment.

This property, although not liable to attachment, because not removable without materially injuring it, is nevertheless subject to this process; because the trustee may, according to the statute, keep possession until the property is capable of removal without injury.

It is true, as laid down in the case of The Maine F. and M. Ins. Co. vs. Weeks & Trustee, cited in , the argument, that no one can be charged, unless he be liable in an action to the principal debtor, or have chattels in his possession, liable to be seized and sold on execution. This proposition is, however, applicable to the nature of the property, and not to the time or manner of the liability of the trustee. Thus one cannot be made trustee by reason of promissory notes deposited in his hands, because they cannot be taken in execution. Nor in the case referred to was there any breach of contract, by the supposed trustee, on which an action would lie. But where there is a debt actually due, although not payable, or where there is property deposited, which may after-wards be liable to be seized, it may be holden by this process; and provision is * made in the statute for a valuation of it, if it cannot be delivered on execution.

The equivocal manner in which the trustee in the case before us speaks of the endorsement of the note, when shown to him by Wilcox, forbids us from considering it as assigned; and even if the note for labor, viz., for tanning the hides, had been assigned, some further evidence would be wanted that the hides themselves had been fairly transferred.

Trustee charged.  