
    Silas B. Hazeltine vs. Seneca Page, trustee of Elijah Parker.
    This Court cannot reverse the decision of the county court in trustee actions, upon matters arising between the creditor and trustee, unless the facts are all placed upon'íhe recór'd in the county court, by a bill of exceptions, or otherwise.
    it makes no difference in this respect, whether the action comes up by appeal, or by exceptions to the decision of the county court.
    'Éxceptions should be drawn and signed by the judges, stating, that they found the facts as stated in the disclosure, or found such to be the facts, stating them, and, upon such facts, decide in favor of such a party.
    The Supreme Court are no more judges of the weight of evidence in such actions than they are'upon any writ of error.
    A trustee of an absconding debtor will not be protected by a previous judgement against him in that capacity, when said judgementis to be satisfied in specific property, and cannot be enforced till a future time, and the monies or credits in the trustee’s hands are due immediately.
    'Neither will a trustee be protected by having promised'to p'dy'the amount of his iri-debtedness to the creditors of the absconded debtor, if such promise be void by the statute of frauds.
    Franklin
    
      January, 1832.
    This case was a trustee process brought by Hazelline against Page, as the trustee of -Parker, who was alleged to -be an-absconded or concealed debtor. The suit -ivas commenced December 20th, 1828. It appeared from the disclosure of the trustee that in the fore part of October, 1827, he executed and delivered to Parker a promissory note for nine hundred dollars, payable in Eve years after date in horses, or other property, such as Pagg,j could best spare 5 that afterwards, on the 9th day of the same-month, Hazeltine caused process to be served on him as the trustee af Parker, and on the 10th day of the same month, David Read also commenced a trustee process against him as Parker’s trustee ; that these suits were both entered in court,and were pending at the time of said disclosure, and in both of which the trustee had, on the 13th day of December, 1828, filed disclosures stating that the promissory note before mentioned was due to Parker according to its tenor. The said Page further disclosed, that after the commencement of the two suits last mentioned, and before the commencement of the present action, he, at the solicitation of Parker,and relying on his promise to settle the first suits, made a settlement wkb Parker, and took up and paid the said note for nine hundred dollars, excepting a balance,for which Z^ng-e-gave-his note to Parker for one hundred pairs of coarse shoes, payable on demand, and another, note for. either, forty or seventy doE lars, (which sum he could not ascertain,)’ payable in Boots and' shoes on demand —that after said settlement, and the execution of these two notes, and before the commencement of the present action, he, Page, became answerable to pay to Elijah Barnes forty dollars, if the title to certain lands which Parker had-sold to Barnes, should fail; also to Read and Beardsley six or seven dollars ; to Augustus Burt the amount of his charges as attorney in the two suits above mentioned ; to Mr. Stowell about six dollars, and to Smalley and' Adams the amount of their fees as attornies in the said, two suits, if Be should have any funds after paying the other debts specified ; the amount, to be paid to Burt,.and to Smalley and Adams could not be then asserlained, as the two> suits were not terminated. All these sums the trustee stated he had agreed to pay at the request of Parker. Pgg-e further slated in his disclosure, that he had a further claim against Parker for his costs as trustee in the two first suits, and for money paid counsel in the- same, amounting to $14,50. If appeared that, the agreement to pay these several-sums was not reduced to writing, excepting the agreement to pay Barnes,as before mentioned. At the trial in the county court at September term, 1831, it appeared that judgements had been rendered against Pflge in the two suits before mentioned, according to his disclosure, in the one in which Mazeltine was plaintiff, for $5,32 damages and $5,32 costs, anti in the other for ‡54,08 damages and $1S,15 costs. The cause was tried on 'the disclosure and other evidence, and a judgement was rendered in favor of the plaintiffs. page, the trustee, excepted, and the following bill of exceptions was allowed, on which the cause was brought before this Court for revision.
    “In addition to, and explanation of, the disclosure in this case, the proceedings and disclosures in the former suits against Page, as trustee of Parker, and mentioned in the disclosure in thilrsuir, were read in evidence. In order to show that the liability oí the trustee to Barnes, set forth in the disclosure, had ceased, the plaintiff read in evidence the record of a mortgage discharged, executed by Barnes to Parker, which was the incumbrance against which the trustee had undertaken to indemnify Barnes, as mentioned in the disclosure. It was proved that sometime previous to the commencement of this suit, Parker employed Burt, as counsel, in the two suits of Hazelhne and Read against page, as trustee of Parker-, mentioned in the disclosure, telling Suit that Page would pay his-fees-; that within a.short time after, and pre-'Nious to this suit, Burt enquired of Page if be would be accountable, and he agreed to stand charged for Burl’s services in the said two suits. Whereupon t'he charges already made were transferred by Burt to the account of page, and all subsequent charges in said suits were made by Burt directly against ^age. It was further proved that Smalley and Adams were counsel for Parker in the same suits, and in this suit, but that their charges were made against Parker alone, and had never been transferred to the account of Page, nor had he ever undertaken in writing to be accountable forme same. Evidence was given as to the value of coarse shoes. Upon the disclosure and evidence, the court decided that the trustee was not entitled in this case to any deduction on account of the two former suits in favor of Hazeltine and Read, on the ground that the disclosure was too general and unsatisfactory as to the manner of satisfying the nine hundred dollar note, and as to the undertaking of Parker to satisfy the judgements against the trustee ; nor on account of his undertaking to Barnes, on the ground that the claim of Barnes was extinguished by the discharge of the mortgage aforesaid ; nor on account of his undertaking to Smalley and Adams, on the ground that said undertaking was void, at least, as against an attaching creditor., by the statute of frauds. And the court further found the value of the shoes to be one hundred and seventeen dollars, and the sum due on the trustee’s second note to Parker to be forty dollars, making in the whole one hunderd and fifty-seven dollars. The court further considered from the disclosure, that this sum was already due and payable. From this sum the court deducted and allowed to the trustee the payment to Read and Beardsley of six dollars, the payment to Stowell of six dollars, the amount of Augustus Burt’s account, found from the evidence to be fifty dollars ; making in all the sum of sixty-two dollars,leaving the trustee liable for ninety-five? dollars. Out of this sum the court allowed to the trustee for his-own time and travel, and attending court, seven-dollars and sixty cents. And for the fees and disbursements of his counsel in this suit twenty-two dollars fifteen cents; making together twenty nine-dollars and seventy-five cents : which sum being deducted from the aforesaid amount of his liability left the sum of sixty five dollars and twenty-five cents, which was adjudged to be in the hands of the trustee subject to the pl'atntiflTs execution. To all which t.he trustee excepts»”
    
      Smalley and Mams, for defendant.
    
    1 The amount of the judgement in the two first suits against Page ought to have been deducted from the sum found in Page’s hands, in addition to the sum deducted by the county court. The plaintiffis not entitled to draw from Page’s hands any sum of money or other property, unless Parker could have drawn the same from Page at the time of the commencement of this action. A short examination of this case, as exhibited by the papers, will show that Parker was not entitled, either in law or equity, to draw any funds from Page’s: hands at the time of the commencement of this suit, until he had settled the two suits then pending against Page as his trustee.
    2, This case has nothing to do with the statute of frauds. The Statute does not prohibit, restrain, or limit, or in any way qualify, the right which a creditor has to direct his debtor to pay to whomsoever the former sees fit. Nor are the obligations of the debtor-intended to be affected by the act.— G***'**'vs. Philips, et al, 10 Johns, 412; Com. Contracts, 181, and the authority there cited. The engagement of Page to pay for the services of Mr. Burt and Smalley and Adams, Parker’s counsel, was nothing more than a mode of paying his own debt. — Roberts on Frauds, 208 and seq. 224, 232. Unless this undertaking can be brought within the statute qf frauds, there was error in the decision of the county court. The fact that Smalley and A.dams did not charge to Page, is sufficiently explained by the displqsure. He was not to pay their charges unless the fiinds should hold out,
    3. The decision of the county court, that the sum found in Page’s hands vyap now due and payable in cash, is clearly erroneous.
    
      Read, for the plaintiff.-n-
    1. It appears from the disclosure made by Page in the two suits referred to in his last disclosure, that there was $900 due from him to Parker at the commencement of said suits ; and further, that but about $70 was recover-edin said suits againstthe principal debtor. The statute (sec. 5) relating to absconded or concealed debtors, (see stat. 151,) is peremptory on this subject, and makes the trustee liable for the full amount of the debt, if he had sufficient funds or property in his hands at the time of the service of the process ; and if he shifts or varies the condition of the property, or pays up the principal debtor, relying upon his responsibility to meet the judgements that might be recovered against him-, it can in no way affect or vary the rights of the attaching creditor. Further, the burthen of proof is on the trustee as to the true state of the funds in his hands; and if he does not clearly state their condition or manner of disposal in his disclosure, as becomes his duty, all legal presumptions will be taken against him ; and how much Page, had paid towards the ‡900 note, or in what manner the same was settled, was matter of fact for the court below to determine.
    2. Whether the claim in favor of Barnes should have been deducted or not, rested also upon matter of fact which the court below have decided, and which this court will not attempt to review. The same as to whether said notes were due and payable.
    3. The decision of the court in not deducting the claim in favor of Smalley and Adams against Parker, was correct, as the undertaking on the part of Page furnished them with no legal claim against him to recover the same ; but, on the other hand, was void under the statute of frauds. — See Stat. 115 ; Rob. on Frauds, 207 — 8 ; do. 222 — 3.
   Hutchinson, C. J.,

delivered - the opinion of the Court.— There appears to be not much in controversy in the present case, except what depends upon the weight of evidence ; and we have no more to do with that, than we should have in any writ of error. And, in this respect, there is no diSerence, whether the action comes up by appeal, or by exceptions to the decision of the county court. We can hold appellate jurisdiction from the county court only to revise their decisions upon matters of law, arising from the facts, in some way placed upon the record. If the disclosure of the trustee is treated as true, let the judges certify, that they found the facts to be as stated in the disclosure. If there is other testimony, also, let them certify, in detail, what facts they find proved by the disclosure and other testimony. The disclosure itself may be so defective and incoherent, that no person can believe all the facts it contains. And, while we admit other testimony, either to contradictor support the disclosure, as ever has been done in this state, we must treat the disclosure rather as evidence, than as a record document. Still, if it appears consistent in and of itself, and stands uncontradicted by other test¡monyj it is treated ns containing the truth. Yet, as the other testimony is not always on paper, we know not whether the county court treated it as true or not, without their certificate upon the subject. In the present case, the exceptions allowed show what facts they found proved,and the decision they made upon those facts. And the defendant now urges that the facts thus found require a decision, that Page might retain out of the two notes, last given by him, sufficient to indemnify him against the two suits named in his disclosure ; also that he should be allowed the sum he agreed to pay to Smalley and Adams, being their debt against Parker, the principal debtor. If we treat the facts upon these points as the defendant conceives they must have been found, and even treat the disclosure as true upon these points,still we must bear in mind that the two last notes, which the county court valued at one hundred and fifty seven dollars, were not left in the hands of Page as a fund to pay the previous judgements : but it was made payable immediately ; and at most, Page only took the promise of Parker to indemnify him against those judgements. Now those judge-ments could not take effect against Page till 1832-3 — and then they might be satisfied in horses, &tc. Of course, this promise could not be pleaded in offset, or set up in any way against the collection ofthe new noies. Nor would a court of equity interfere, even as against Parker, to stay the collection, on account of that executory promise. It would be necessary to show the inability of Parker to fulfil the promise. Nothing of this sort appears here. And does it follow, that an attaching creditor of Parker is to be restrained — even if Parker would be ? So long as the right of Parker to the $157, is a legal right, is not that enough for a creditor ? — Why is this different from the case of specific chattels belonging to Parker in the hands of Page — not deposited there asa pledge against the promise of Parker — but to be redelivered •when called for. A creditor goes and attaches that property ; •shall his execution be prevented on account of that promise ? As to the debt, of Smalley and Adams, and the application of the statute of frauds ; no debt of Page to Parker, or of Parker to .Smalley and Adams, is discharged by the verbal promise of Page to Smalley and Adams, unless the promise ipso facto operates to •discharge those debts. But the account of Smalley and Adams was continued against Parker : thus rebutting the presumption of its discharge as against Parker.— Vide Livingston vs. Wilkinson, Sup. C. F. G. January T. 1828. No new consideration passed between Smalley and Adams and defendant. It is not like Williams vs. Leaper in Burrow. To make it similar, Smalley and Adams should have been about to attach the property of Parker in Page’s hands — 'then Page’s promise (with the assent of Parker, and perhaps without it) to pay their debt, in consideration of withdrawing their attachment. If not within the statute — is the promise grounded on any sufficient consideration ? To make a consideration, was it not necessary that Page’s promise should have been accepted in satisfaction of Parker’s debt? — Page’s authority under Parker was to pay the debt to Smalley and Adams, and not to embarrass the property of Parker by making a collateral engagement short of extinguishing the debt as against Parser. The court made the proper distinction between this claim of Smalley and Adams, and that due to Mr. Burt. Burt had accepted Page as his debtor, and charged him, and discharged Parker. The county court allowed Page to retain that .amount.

Smalley & Adams, for the trustee;

Read, for the plaintiff.

The defendant has urged one further objection ; that the court were not warranted in adjudging Page as trustee of the monies of Parker, when one note was merely for so many pairs of shoes. The exceptions show, that the court found, from the disclosure, that the note payable in shoes had become due and payable.. Hence they set a value upon the shoes, and considered that value to be money in his hands. Were it our province to-decide upon the evidence, we should consider it as well warranting the decision of the county court. The note for shoes was-payable on demand. The disclosure states his undertaking to pay divers money debts on account of it, to nearly its value, and says-the remainder is due. If, by its being due, might not be intended that it was payable, yet his undertaking to pay so many money debts, well warranted the presumption that the shoes had been demanded, and the note become payable in money..

The judgement of the county court is affirmed..  