
    Daniel Parker and Others versus Israel Kinsman, and Jacob Peabody, his Trustee.
    
      A having assigned all his property to B, in trust for his creditors, and the same being afterwards taken out of B’s possession by attachment at the suit of certain of A’s creditors, B was afterwards summoned as the trustee of A, in a foreign attachment, and held as such.
    The question submitted to the determination of the Court in this case was, whether, by the answers of Peabody to the usual interrogatories, he should be adjudged the trustee of Kinsman.
    
    
      From those answers it appears that on the 20th of May, 1811, Kinsman and Peabody executed an indenture, by which Kinsman conveyed to Peabody his whole estate and effects, in trust that he should convert them into cash, and make a ratable distribution of the proceeds amongst all the creditors of Kinsman, who should, within twenty days from the date of the indenture, present their claims, and ratify and confirm the provisions of the said assignment, immediately upon the execution of the indenture, Kinsman delivered the key of his store to Peabody, which store contained all the reputed property of Kinsman, but no bill or invoice of the goods therein was delivered. Peabody locked the store and retired. Within two days after the above transaction, and before any of the goods were removed from the store, but after the service of the summons was made upon Peabody in this action, certain creditors of Kinsman sued out writs of attachment against him, and thereupon caused the store to be broken open, and the goods therein to be attached, and they were in * the possession of the officer at the time of the answers. The assignment purported to be made in consideration of the insolvency of Kinsman, his disposition to make a just division of his property among his creditors, and one dollar paid him by Peabody. But nothing was in fact given or promised to him as a consideration.
    
      Selfridge, for the defendant,
    contended that the process of foreign attachment does not lie, except where the goods, effects, &c., cannot be come at to be attached by the ordinary process of law. But here the plaintiff might have seized the goods, as well as those other creditors of Kinsman, who afterwards caused them to be attached. If the deed was fraudulent, and therefore void against creditors, the property of the goods remained in Kinsman, and Peabody was merely his servant, or the keeper of the goods. 
    
    
      Shaw for the plaintiff.
    The trustee was answerable at the time of the service of this process upon him. He had the custody of the goods. They had been, in the very words of the statute, “ intrusted and deposited ” in his hands. After the service of the summons upon him, the property was bound thereby; and he not only had a right to keep the possession of them, but it was his duty so to do. He will have his remedy over for them, against the officer who now holds them.
    
      
       See 5 Mass. Rep. 303, Waterman vs. Robinson. -— 1 Binney's Rep 502
    
   And the Court,

being of this opinion, decided that Peabody was holden as trustee.  