
    * Ezekiel Decoster versus Edward St. Loe Livermore.
    Where the payee of a negotiable promissory note exhibits and proves his demand under a commission of bankruptcy issued against the promisor, upon a dividend declared, the assignee of the bankrupt is liable to attachment as the trustee of the payee, notwithstanding the note afterwards appears to have been negotiated to a third person.
    This was a scire facias against the defendant, who had been summoned, in an original suit, by the present plaintiff, as the trustee of Lemuel Cox.
    
    The defendant, upon the return of the scire facias, submitted to an examination, and stated that on the 28th of July, 1803, he, being assignee of the estate of E. B., Jun., a bankrupt, and against whom a commission of bankruptcy was then in prosecution, and having in his hands certain moneys belonging to said estate, the commissioners ordered a dividend of 25 per cent., which dividend amounted, on two certain debts proved by said Cox under said commission, to 469 dollars 69f cents, which the defendant acknowledged to have in his hands at the time of his examination, subject to legal disposal. After the defendant was summoned in the original suit referred to in the scire facias, two notes of hand, which appeared to have been, and which the defendant verily believes to have been, the proof of the said debts, were shown to him in behalf of Betsey Dudley, daughter of the said Cox, whose name was endorsed thereon, and the money in his hands, as aforesaid, was demanded of him as the property of the said Betsey Dudley; which said notes are particularly set forth and described in an affidavit of the said Cox, exhibited by the defendant, in which the said Cox swears that the said notes were endorsed by him to his said daughter, and are, and were before the bankruptcy of E. R, Jun., her property, and that he exhibited them before the commissioners as her agent; that the said affidavit was presented to the defendant on the 15th of October, 1804, in behalf of the said Betsey Dudley ; that no other proof was ever exhibited to him of the said assignment; but the defendant says he has no cause to disbelieve the facts stated in said affidavit; and whether he is trustee of the said Cox upon these facts, he submits to the Court.
   The Court

observed that there was ground to suspect management between Cox and his daughter; that Cox stated no * consideration for the assignment in his affidavit; that [ * 102 ] the daughter had not appeared in the business, until after the debt was attached in Mr. Livermore’s hands; and that, if Cox had received his daughter’s money, she might bring her action for it.

The defendant was adjudged trustee. 
      
       [But see Willard vs. Sturtevant, 7 Pick. 194. — Hawes vs. Langton, 8 Pick. 67. — And see Revised Statutes, c. 109, § 15,16, 17. If the money really belonged to the daughter, it was most manifestly unjust to hold the assignee as trustee of the fathe - En.j
     