
    Silas Howell versus Enoch Freeman, and Dean Frye, his Trustee.
    A debt due from A. to B. for the recovery of which an action has been com menced and referred by a rule of the court, in which rule it was agreed that judgment should be entered up according to the report of the referees, and execution issue thereon, is not liable to attachment in the hands of A. at the suit of S.’s creditor.
    This was an action pending in the county of Cumberland, in which the only question brought before the Court was, whether Frye was trustee of Freeman. This question was argued at the last May term at Portland, and the action was continued nisi foi advisement.
    From the facts disclosed by Frye, in his answers to interroga tories, it appeared that at a Court of Common Pleas [ * 122 ] * holden on the third Tuesday of February, Anno Domini 1805, an action of covenant broken was pending, in which Freeman was plaintiff, and Frye defendant; that, at that term, the parties entered into a rule to submit all demands between them to certain referees, and that judgment should be entered on their report, and execution issue accordingly; that the referees, after hearing the parties, agreed on their report on the 14th day of May following, in which they awarded Frye to pay to Freeman 602 dollars, 84 £ cents, with costs; that the report of the referees was returned to the next Court of Common Pleas holden on the third Tuesday of June; that on the twenty-fourth day of the same May, Howell sued Freeman, and attached all his goods, effects, and credits, in the hands of Frye as his trustee, by a writ returnable on the same third Tuesday of June ; that, at that term, Howell prosecuted his action against Freeman, and that Freeman had judgment against Frye on the report of the referees; that, on the eleventh day of July, Freeman sued out his execution against Frye, which was satisfied on the twenty-second of the same month by extending the same on Fiye’s lands; and that Frye had no goods, effects, or credits, of Freeman in his hands at the commencement of this writ, unless the sum reported as aforesaid by the referees should be deemed credits liable to Howell’s attachment.
    
      Longfellow, of counsel for the trustee,
    contended that, by “ goods, effects, and credits,” the statute  must be construed to mean such as the trustee had the control of, and could legally retain in his hands, until the creditor sued out his execution. The statute expressly enacts that “ the goods, effects, and credits, of the principal, in the hands and possession of his trustee or trustees at the time such writ was served upon him or them, shall stand bound and be held to satisfy such judgment as the plaintiff shall recover against the principal.” But in this case it is believed the trustee had no means to hold the credits in his hands. The report of the referees was of the nature of a verdict, to which the defendant had no legal exception. It was not in his power to stop the course of legal proceedings.
    *By another clause in the statute, the trustee is to be [ * 123 J discharged from all demands of the principal on account of the goods, effects, or credits, taken under this process. But how can he obtain indemnity of an insolvent debtor, who has, by a legal process not to be resisted, already taken out of his possession the very credits with which he was to satisfy the attaching creditor ?
    
      E. Whitman, for the plaintiff,
    thought this case within the provisions of the statute. Unquestionably, Frye had credits in his hands and possession belonging to Freeman when the writ was served. These credits being bound from the service of the writ to respond to the plaintiff, it became the duty of the Court, in which the action of Freeman against Frye was pending, to protect the latter from mischiefs. Perhaps the defendant had a right to plead this matter as a temporary bar, whereby the judgment would have been delayed until the issue of this process should be known, and then entered for the balance remaining due; or the report might have been recommitted to the referees, who would have done justice between the parties. In one or the other of these methods, Howell, the creditor, might receive the benefit the statute intended to afford him, and all wrong would have been prevented.
    
      
       1794, c. 65
    
   At this term the opinion of the Court was delivered by

Parsons, C. J.

[who, after reciting the facts as before stated, proceeded.]

That the sum reported by the referees was a credit of Freeman’s in Frye’s hands is very clear, as it was a debt due before, but not liquidated until the report. But whether this credit was so situated as to be the subject of Howell’s attachment, is the great question.

The eighth section of the act, which authorizes the attachment of credits, provides that the taking of the goods, effects, and credits, out of the hands of the trustee, pursuant to that statute, shall discharge him against all suits and demands of the principal; and, if sued, he may plead the general issue, and give that statute in evidence.

It is the design of the statute, and manifestly just, that the trustee shall not be twice charged for the same credit, once [*124] *by the attaching creditor, and again by his principal. The credit, therefore, liable to this attachment, must be so situated, that, if it be taken by the attaching creditor, the trustee may legally defend himself, when called on by the principal.

In the present case, before the attachment, a suit to compel pay ment was pending, a rule of reference had been entered into, in which the parties had agreed that judgment should be entered according to the report, and the referees had agreed on their report. In this state of the action, no day for pleading remained for the trustee, and the law furnished him with no legal defence against the principal’s demand of judgment. The principal being entitled to judgment, his execution was properly sued out and satisfied. The debt consequently due him from the trustee was, at the time of Howell’s attachment, so situated, that he could not defend himself against paying it to Freeman: it is not, therefore, a credit in the hands of the trustee subject to this attachment .

The trustee must be discharged and have his costs. 
      
      
        [Locke vs. Tippets & Trustee, 7 Mass. 149.—Foster vs. Jones, 15 Mass. 185.— Gridley vs. Harraden, 14 Mass. 496.—Thorndike vs. De Wolf, 6 Pick. 120.—Kidd vs Shepherd, 4 Mass. 238.—Eunson vs Healy Trustee, 2 Mass. 32.—Ed.]
     