
    Kilborn Whitman versus Joseph Hunt and Adam Fish, his Trustee.
    The answer of a trustee in a foreign attachment must be received'as true; and if he answer falsely to discharge himself, the plaintiff’s only remedy is by a special action of the case under the 9th section of the statute of 1794, c. 65, providing this process.
    The only question before the Court in this action, which was pending in the county of Plymouth, was, whether Fish was to be adjudged the trustee of Hunt, the defendant, upon his answers to the interrogatories.
    On his examination in the court below, he acknowledged having received personal property to a considerable amount, together with sundry parcels of real estate, which were conveyed to him by Hunt 
      But he did not show explicitly in what manner he had discharged himself from his accountability. After the action was brought to this Court by appeal, he underwent a further examination, upon which he stated the amount of the personal property, and the value of the real estate, as ascertained by a sale at auction, and also the amount which he had paid, or was answerable for, on account of Hunt, who had absconded; and upon this statement there appeared a considerable balance due from Hunt to Fish.
    
   The question was submitted without argument, and the action being continued nisi for advisement from the last October term at Plymouth, the opinion of the Court was delivered at this term by

Parsons, C. J.

After the examination of the supposed trustee on oath, the plaintiff moves that he may be adjudged the trustee of Hunt.

It is evident that the trustee, on his examination in the Common Pleas, answered to some of the questions imperfectly, and * to others evasively ; and were we to give judg- [ * 273 ] ment on that examination, the trustee must be charged, because he has not discharged himself on oath. Since the cause has been removed here by appeal, the trustee has submitted to a further examination on oath, on which, if he is to be believed, he has unequivocally discharged himself,

There are certainly circumstances disclosed by him, which lead to a presumption of covin between him and Hunt, his principal; but in this process we are obliged to consider all the answers of the trustee as true ; and his last answers, if true, remove that presumption.

He must therefore "be discharged; and if he has answered falsely, the plaintiff may have his remedy, on a special action of the case, agreeably to the ninth section of the statute of 1794, c. 65, which gives this process.

Let Fish, the trustee, be discharged. 
      
      
        а) [Cleveland vs. Clapp & Al., 5 Mass. Rep. 201.— Shaw vs. Bunker, 2 Metc 376. — Hawes vs Langton, 8 Pick. 167. — Harris vs. Aiken and. Trustee, 3 Pick. 1. — Willard vs. Sturtevant and Trustee, 7 Pick. 94. — And see Sebor vs. Armstrong and Trustee, ante, 206. — Ed.]
     
      
      
        [Hatch vs. Smith and Trustees, 5 Mass. Rep. 49. —Forsyth vs. Shaw, 10 Mass. Rep. 253.— Chase vs. Bradley, 5 Shepley, 89. — Hawes vs. Langton, 8 Pick. 67.— Rev. Stat. c. 109, § 15, 16, 17, 18,19, 20. — Comstock vs. Farnum, 2 Mass. Rep. 96. — Stackpole vs. Newman and Trustee, ante, 85 — Minchin vs. Moore, 11 Mass. Rep. 90 — Ed.]
     