
    Wentworth vs. Weymouth.
    A. gave a note, not negotiable, to B. and was then summoned as his trustee in the process of foreign attachment. A. disciosed, that since the service of the writ, C. had informed him that the note was his property, and that B. acted as his agent in taking it. But C. having exhibited no evidence that the note was his, the trustee did not add, that he believed said statement to be true, or his belief that the property was C’s, and he was thereupon charged, and afterward satisfied the judgment. In a suit against him on the note, in the name of B., for the benefit of C., it was held, that these facts constituted a good de-fence.
    Assumpsit on a promissory note for forty-five dollars, given by the defendant to the plaintiff, dated March 10th, 1832, and payable in January then next. The note was not negotiable, and the suit was brought for the benefit of Francis Hill. The defendant had tendered and brought into Court, $33,25, insisting that no more was due. — The ease was submitted for the opinion of the Court upon the following agreed statement of facts, piz: —>
    In September, 1832, Weymouth was summoned as trustee of Wentworth in a process of foreign attachment, triable before a Justice of the Peace, and on the 20th of October, 1832, he made a disclosure before the Justice in the following words, viz: “On the 10th day of March last I gave Wentworth a note not negotiable for $45, which note is not yet paid — Since the service of the plaintiff’s writ on me in this action I have been informed by Francis Hill, that the said note is his property — Said Hill shew me no assignment in evidence of property in said note — Said Hill further said that the note had been in the hands of said Weymouth for the purpose of giving up said note and taking a new note for the same which should be negotiable and payable to said Hill— My note to Wentworth was given for a yoke of oxen purchased by me of said Weymouth.”
    The oxen for which said note was given, were the property of of said Hill — and Wentworth in selling them and taking the note, acted as the agent of Hill, but did not disclose his agency to Weymouth. Immediately after the sale, Wentworth delivered the note to Hill, who then objected to the manner in which the note was drawn, and requested Wentworth to take it back and exchange it for one payable to Hill, and negotiable. Wentworth took back the note for the purpose aforesaid, but Weymouth being absent several months, he did not get it exchanged but returned it to Hill.
    
    In September, 1832, after the service of the trustee process, Hill informed Weymouth of these facts, and requested payment of the note. Weymouth refused to pay, until the trustee suit should be settled. Hill replied that he, Weymouth, might disclose that he, Hill, was the owner of the note and always had been. Of these facts, however, the only knowledge that Wey-mouth had, was derived from the declarations of Hill. The defendant was adjudged trustee in the Justice suit and has paid on the execution, $20,85.
    J. B. Hill, for the plaintiff,
    
    insisted that the payment made by the defendant as trustee ought not to be allowed him in this suit, because the facts, as stated by him in his disclosure, shew that he was not trustee, and that he therefore should have appealed, whereby the error of the magistrate could have been corrected.
    2. Because he did not state in his disclosure all the facts that had been communicated to him by Hill — which, if stated, would have procured his discharge as trustee. These facts shew conclusively, that at no instant had Wentworth any interest in the oxen or the note, and that both were at all times the property of Hill — and that immediately after the sale the note was passed to Hill, — and only returned again to Wentworth for a special purpose, not in anywise affecting the property in it.
    3. Because the defendant omitted to state material facts, and misrepresented as to others — particularly in this, that he stated he gave the note for oxen purchased of Wentworth, without adding that they were the property of Hill — in stating that the note had been in the hands of Wentworth, for the purpose of being exchanged, without adding that it was immediately after it was made and delivered to Hill — and in omitting the reason why it was not exchanged. Cushing’s Trustee Process, 217, 221. Hawes al. v. Langton &f Tr. 8 Pick. 67.
    4. He should have stated his belief in the truth of the facts stated hi the disclosure. Otherwise he should have taken no notice of them. Cushing’s Trustee Process, 216, 221; Phil. Big. 370.
    
      Hill, not being a party to that suit, is not concluded by the judgment, from showing that the note was his property. Andrews v. Hening, 5 Mass. 212.
    This is not a case of assignment where the evidence of transfer and property is to be exhibited to the trustee. And it being a Justice suit in which the owner of the property cannot be summoned in to prove his title — the declaration of the trustee is to be regarded as conclusive of the fact that Hill was in truth the owner.
    But even on the ground of an assignment, the plaintiff contends that he is entitled to recover the whole amount of the note. A chose in action may be assigned by delivery merely, which delivery is found in this case. Jones v. Witter, 13 Mass. 304, and 15 Mass. 481.
    Notice of the assignment may be given at any time before disclosure— and it is not necessary to exhibit the note at the time of giving notice. Ammidown v. Wheeloclc, 8 Pick. 470 ; Cush-ing’s Trustee Process, 173.
    
      Allen and Appleton, for the defendant,
    cited Wood v. Partridge, 11 Mass. 488 ; Foster v. Sinkler &f Tr. 4 Mass. 450; Clark v. Brown, 14 Mass. 271; Fisk Sf al. v. Weston, 5 Greenl. 411; Hawes &f al. v. Langton Sf Tr. 8 Pick. 71; Adams &f al. v. Cordis, 8 Pick. 260; Dix v. Cobb, 4 Mass. 511.
   Mellen C. J.

On the 10th of March, 1832, Weymouth gave his promissory note to the plaintiff for $45,00, payable in January, 1833. The note was not negotiable. In September, 1832, Weymouth was summoned as trustee of Wentworth, and on his disclosure he was adjudged trustee, and has paid the plaintiff in the trustee process, on execution of $20,85 cents, and has tendered to the present plaintiff the. balance of the note and costs, being $33,25 cents, which sum has been brought into Court. No question has been made respecting the tender. The only inquiry is, whether the disclosure made by the defendant was a full one, and such as he ought to have made, in the circumstances in which he stood; or whether he was adjudged trustee because he did not disclose certain jacts in relation to the claim of Francis Hill to the sum mentioned in the note. In Herring v. Andrews, 5 Mass. 210, Parsons C. J. says, “ We do not consider that a stranger to the suit in which a trustee is examined, is concluded by the examination from proving that there were other facts within the knowledge of the trustee, which he did not disclose, or that there was collusion between him and the plaintiff or defendant in such suit.” If any facts were within the knowledge of the trustee and not disclosed, which, if they had been disclosed would have induced the court to discharge him, he cannot now avail himself of the judgment rendered in the trustee suit, as a defence to this action. We have before us no proof of collusion. The defendant in his disclosure says, I have been informed by Francis Hill that the said note is his property” — “ But he never shewed me any assignment in evidence of his propertynor does it appear that Hill had any interest whatever in the note, except from his own declaration ; or at least, that the defendant had any knowledge of the fact, except from his statement a short time prior to the disclosure. In Hawes & al. v. Langton, and trustees 8, Pick. 67, the court observe that extrinsic facts have sometimes been introduced by the voluntary annexation of the evidence of them to the answers of the trustee, he declaring upon oath, that he believes them to be true; but if the trustee should refuse to annex such evidence, we think there is no power in the court to compel him/' In the case before us there was no evidence in possession of the trustee which he could annex. It is urged that he should have disclosed all the facts which Hill told him prior to the disclosure; namely, that the oxen for which the note was given, belonged to Hill, and that Wentworth acted as his agent in the sale of them, though he did not disclose his agency, and that immediately after the sale, he delivered the note to Hill, who then objected to the manner in which it was drawn and requested to have the note changed for one negotiable and payable to himself. — Supposing all these facts had been disclosed, they are nothing but Hill’s declarations, not on oath, and the same, thus presented to the Court, would have availed nothing, unless the defendant had also sworn that he believed ike declarations were true, according to the case of Hawes & al. v. Langton, just cited. Now what evidence have we that the defendant Jcnew or believed those declarations to be true ? The case is totally silent on this head. The omission, therefore, of the defendant to disclose certain declarations of Hill, unsupported by any kind of evidence, and of the truth of which we have no evidence that the defendant could even swear to his belief, cannot in our opinion, defeat the defence predicated on the judgment in the trustee process and the satisfaction of it. The action cannot he maintained, and the plaintiff must he nonsuit.  