
    Thomas R. Plympton versus Lemuel Cutler.
    The defendant, after having been summoned as trustee in an action brought by M,' against C., made a note for the sum due from him to C., and being desirous of having the note set off against a debt due to himself from M., C. and the defendant deposited it with a third person, to hold until they should have an opportunity of mak ing a settlement with M., when they would direct die depositary to deliver it to one of the three. No such settlement was made with M. ; who afterwards obtained judgment and took out an execution, which was satisfied in part only by C., but no demand upon it was ever made on the defendant as trustee. C. died, and his estate was represented insolvent; and some years after the issuing of M.’s execution, the depositary, upon a demand made, delivered the note to C.’s administrator. It was held, that the administrator had a right to the note, and an action upon it, brought by him against the defendant, was sustained.
    Assumpsit by the administrator of G. Cooper, on a note made by the defendant to the intestate. Plea, the general issue.
    The note declared on was produced by the plaintiff.
    The defendant then gave in evidence a judgment rendered in 1824 against Cooper as principal and the defendant as his trustee, in favor of N. M.‘Intire. Upon this judgment an execution had been issued, but had not been returned. The officer who had the execution, testified that it had been satisfied only in a small part; that he made no return on it; and that he did not know whether he had ever called upon the trustee, the present defendant.
    The person who wrote the note, testified that it was given upon a settlement between the intestate and the defendant, for a balance due from the defendant; that it was given after the service of the trustee writ upon the defendant, and before the rendition of the judgment; that when it was given, it was stated by the parties to it, that M‘Intire was indebted to the defendant, and it was the defendant’s desire that the debt which he owed to the intestate should be set off against the debt which M'lntire owed the defendant, and they both stated that M‘Intire had agreed to make the set-off. The intestate and the defendant then put the note into the witness’s hands to hold till they could have an opportunity to settle with M‘In-tire, when they would direct him to give the note either to the intestate, or to the defendant, or to M‘Intire. The intestate died insolvent, and upon a representation to the judge of probate, commissioners of insolvency were appointed. The plaintiff demanded the note of the witness, who delivered it to him.
    The defendant was defaulted ; and if upon these facts the plaintiff was entitled to recover, judgment was to be rendered upon the default; otherwise the plaintiff was to become nonsuit.
    
      Oct. 15th, 1829.
    
      T. Fuller, for the defendant,
    urged that the judgment in favor of M'Intire still subsists and may be enforced against the defendant as trustee. Perkins v. Parker, 1 Mass. R. 117.
    The lien on the property in the hands of the trustee was not dissolved by the principal’s dying insolvent. Stanwood v. Scovel, 4 Pick. 422 ; St. 1783, c. 59, § 2 ; St. 1794, c. 65, § 5, 6 ; Grosvenor v. Gold, 9 Mass. R. 209.
    The note was deposited with the witness in the manner of an escrow, and he could not rightfully deliver it to the plaintiff without the assent of M‘Intire.
    
      
      JVbv. 23d. 1829.
    Bemis, for the plaintiff.
   Per Curiam.

In order to make out the defence, it should appear either that judgment was rendered against the defendant upon his answers, in the suit of M‘Intire against the intestate, or that M‘Intire had agreed that his demand against the intestate should be set off against the debt due from himself to the defendant. But neither of these facts appears. Whether the defendant was charged as trustee in M‘Intire’s suit, is not stated; nor does it appear that the judgment in favor of M‘Intire against the intestate has been satisfied or discharged. On the contrary, a part of the money was raised on the execution, out of the effects, we suppose, of the intestate. Nor is there any discharge of the defendant’s demand against M‘Intire. The whole transaction was unfinished and incomplete ; and when the note in suit was given, it was left in the hands of a third person, to be delivered to one or other of the parties after a settlement with M‘Intire. No such settlement has taken place. The administrator of the intestate, therefore, has a right to the note and to this action upon it. The defendant’s demand against M‘Intire remains in force ; and MTntire must look to the estate for his demand against the intestate.

Judgment for plaintiff.  