
    * James Penniman and Another versus John Ruggles and Another, and John Jutau, their Trustee.
    An auctioneer, selling goods by orders from a sheriff, and receiving the money for them, is accountable only to the sheriff, and cannot be held as the trustee of those who may have claims on the sheriff for the proceeds.
    In this action, the only question for the decision of the Court was, whether Jutau, upon the facts disclosed on his examination, was to be adjudged the trustee of the principal defendants.
    These facts were, so far as can be collected from the answers of Jutau, that George Jackson, a deputy sheriff, having attached sundry goods, the property of the defendants, on writs issued against them, advertised them for sale at public auction, and employed Jutau to sell them as the auctioneer; that he accordingly sold them, and when he was summoned as trustee in this action, he held in his hands the proceeds of ■ the sale; and that he was informed by Jackson, that the proceeds of the sale were to be applied by him to satisfy the judgments of the attaching creditors, when they should be recovered.
    
      Sullivan, for the plaintiff,
    contended that the deputy sheriff acted altogether without legal authority in causing the goods to be sold. He thereby dissolved the lien created by the attachment, and became answerable to the creditors, at whose suits he had attached them, for their value; and that Ruggles & Al. had, from the time they were sold, a right to demand payment of the proceeds from any person who might hold them. This right, by this suit and by virtue of the statute which gives this process, is transferred to the plaintiffs, creditors of Ruggles & Al.
    
    
      Dexter, for the trustee,
    insisted that the money, in this case, could in no sense be said, from the facts disclosed, to have been deposited in Jutau’s hands by the principal defendants. The utmost that can be said is, that in case the money should be more than sufficient to satisfy the judgments to be rendered in the suits upon which the attachments were made by Jackson, [ * 167 ] such surplus was to be * paid over to the debtors. But it does not appear that there would be such a surplus, and a contingent demand is not within the statute. 
    
    But, further, as here is sufficient disclosed to raise a presumption that the goods in this case were sold by the consent of creditors and debtors, and that the money arising from the sale should be reserved to satisfy the judgments, whoever, under such agreement, held the money, was the trustee of the creditors, and not of the debtors.
    
      
       3 Mass. Rep. 33, Davis & Al. vs. Ham & Al.
      
    
   Parsons, C. J.

Is Jutau, upon the facts disclosed by him, the trustee of the principal defendants ? is the question before us.

The plaintiffs have argued that he is, because the agreement between the officer who attached, and the defendants, the debtors, is void as to creditors, and the lien arising from the attachment is discharged by the sale, and consequently that Jutau, being accountable to the defendants for the proceeds, is their trustee.

On the other side, it is admitted that the lien arising from the attachment is no longer in force; but it is insisted that when goods are regularly attached at the suit of bona fide creditors, and there is an agreement by all the parties in interest, that the officer shall sell the goods, and hold the proceeds for the payment of the judgments to be recovered by those creditors, he is their trustee, and shall hold the proceeds protected against any other creditors.

As the facts concerning any such agreement are not within the knowledge of the auctioneer, who may not know the attaching creditors, or whether their debts are bona fide or not, and who can disclose only the information he may have received, without being able to ascertain its correctness, we do not conceive that this point is properly before us; and therefore we give no opinion on this question.

But we are satisfied, on another ground, that Jutau cannot be adjudged the trustee of the defendants. It sufficiently * appears that Jackson claimed a special property in the [ * 168 ] goods, as having attached them by writ; that he advertised them for sale; that Jutau was merely his agent to put up the goods at auction, and to receive the money for him ; and that there is no privity between the auctioneer and the defendants. He must, therefore, account with the officer for the proceeds, and the officer is answerable to those who may be injured by his conduct, oi who may have any right to the money.

The inconveniences of a different construction are manifest The auctioneer, being a mere agent of the officer, for the sole pur pose of selling the goods, and receiving and paying over to him the money, may have no knowledge of the rights or interest of the officer, or of any other person, and cannot disclose the facts really existing, on which the rights .of all persons claiming to be interested are founded. It would, therefore, be unreasonable that the right of property should be decided on a very partial and incomplete disclosure of the facts, on which such right vested. The plaintiffs in this case should have summoned the officer as a trustee, from whom might be obtained the facts necessary to form a correct judgment.

Trustee discharged 
      
       [See the Revised Statutes, which provide for trying the claims of persons claiming to be interested in certain cases. — Rev. Stat. c. 109, § 17, 18, 19, 20, 21, 31. — Ed.]
     