
    Jacob Sebor versus William Armstrong and Thomas L. Winthrop, his Trustee.
    If one summoned as trustee in a foreign attachment, declares that he has accepted a drought in favor of the principal, which he thinks was payable to order, he will be adjudged trustee, having funds to respond the drought.
    The only question in this action was, whether Mr. Winthrop should be adjudged the trustee of the defendant Armstrong upon the following disclosure made by him at the Common Pleas in July last.
    “ And now the said Thomas L. Winthrop, in his own proper person, cometh into court, and for answer to the plaintiff’s writ aforesaid, saith, that before the month of January, [ * 207 ] * 1800, Messrs. George Storer and Charles Buljinch were indebted to Benjamin Winthrop, of New York, Esquire, in a large sum of money, which debt was committed to me to collect ; and I received of the said Storer and Buljinch, before the said month of January, 1800, a note of hand signed by Henry Knox, and endorsed by Henry Jackson and Benjamin Lincoln, as collateral security for the payment of the said Benjamin Winthrop’s demand against the said Storer and Buljinch, and also to secure a demand, which the said Sebor had against them, the said Storer and Buljinch. — Afterwards the said Benjamin Winthrop drew an order on me, in favor of the said Armstrong, for 1800 dollars, requesting me to pay it to the said Armstrong (and I think to his order) out of any money I might receive of said Storer and Buljinch, or said Knox’s note, which was endorsed as aforesaid ; which order, in the month of January, 1800, I accepted to pay conditionally, viz., when in cash from those persons. I further say that I instituted a suit against the said Knox, Jackson, and Lincoln, and at the Supreme Judicial Court, in March last, I recovered judgment against the said Jackson and Lincoln for the sum of 7853 dollars 41 cents’ damage, and costs of suit, which have been paid me; so that in that way I have finally obtained payment of the said debt, which was lodged with me by the said Storer and Buljinch, as collateral security, as aforesaid. I have paid said Sebor his part thereof, and to Benjamin Winthrop his part thereof, reserving from his said part sufficient to respond the said order in favor of Armstrong; and whether I am trustee or not is submitted to the court.”
   Per Curiam.

We are called upon to decide if Mr. Winthrop shall, upon the facts disclosed by him on his examination, be adjudged the trustee of Armstrong.

By the third section of the statute of 1794, c. 65, which gives this process, any person summoned as a trustee shall be so adjudged, unless he declare on oath that he had no goods, effects, or credits, of the principal, when the writ was served on him.

By the twelfth section it is provided, among other things, that no person shall be adjudged a trustee, on account of his having accepted any negotiable security.

[*208] *Mr. Winthrop, on his examination, declares that he had accepted a drought on him from one B. W. in favor of Armstrong, the principal, for 1800 dollars; and that, when the writ was served on him, he had not paid that drought, but had sufficient funds of B. W.’s in his hands. On this declaration there is no doubt but Mr. Winthrop is the trustee of Armstrong, he owing him 1800 dollars on an accepted drought. But in this declaration he adds that he thinks the drought was payable to Armstrong or his order If the accepted drought was negotiable, Mr. Winthrop is protected by the twelfth section of the act above cited. But he must be positive as to this fact. He has had time to inquire, and he does not move the Court for leave to make any further declaration on this point. If the trustee, in whose knowledge the fact ought to be, is doubtful, the Court cannot make any presumption in his favor.

Mr. Winthrop must be adjudged the trustee of Armstrong.  