
    Richard Warner vs. William C. Perkins & trustees.
    Where several persons are jointly liable as trustees, as holding a credit, or being the debtors, of a principal defendant, it seems they should ail be served with process, if inhabitants of the commonwealth and within the reach of process.
    Where a contract for fencing lands at a certain rate, provided that the workman should be paid on the completion of the work, or as soon after as sufficient money should be obtained by sales of the lands fenced; it was held, that the employer, having received no money from sales of the lands, and having paid the workman in advance for more of the work than he had performed, was not chargeable by the trustee process as the trustee of the workman.
    Whether persons summoned as trustees, having once answered interrogatories, shall answer further, is within the discretion of the court, and may properly be refused, if the new interrogatories have either been previously answered, or are impertinent or immaterial.
    Alvah Kittredge and Francis C. Head, summoned as trustees of the principal defendant, disclosed in their answers, that they were two of the five commissioners of the Roxbury Cemetery, with whom the principal defendant had made a contract in writing, on the 10th of May, 1848, to fence the lots in the cemetery at a certain price; “said fence to be completed by the 15th of June next ensuing; when payment is to be made, or as soon after as the money can be collected from proprietors of lots.” The other facts of the case, which was argued and decided at the October term, 1850, are stated in the opinion.
    
      F. Hilliard, for the plaintiffs.
    
      J. J. Clarke, for the trustees.
   Shaw, C. J.

We have no doubt that the trustees were rightly discharged. Two only, out of the five persons named in the writ, were served with process, in a case where, if the trustees who have answered were liable at all, they were liable jointly with the others. We are inclined to the opinion, that when the plaintiff proposes to charge trustees, as holding a credit, or being debtors to the principal defendant, all must be served with process, who are jointly liable, and who are inhabitants of the state, and may be served with process. Jewett v. Bacon, 6 Mass. 60; Parker v. Danforth, 16 Mass. 299. The importance of this in principle is illustrated in the present case, in which the plaintiff, in his interrogatories, is under the necessity of asking the two what their co-trustees said and did in respect to their joint indebtedness to the principal.

But there are several grounds much more decisive: 1. The trustees were only liable on a written contract, which was entire, by which the principal was not to receive his money till his work was complete; and it was not complete, but substantially, and not formally merely, incomplete, when the trustee process was served. 2. They were to pay him only when in funds from the sale of lots, and they were not in funds. 3. Although not bound to pay any thing till the work was finished, they had paid him in advance a larger proportion of the whole price, than the proportion of the work done bore to the whole work, had the contract been divisible and the contract payable pro rata. Such payment in advance, though they were not bound by the contract to make it, was a good discharge pro tanto.

One interesting and rather novel feature in this case is, that after the trustees had filed the general answer, and subsequently filed answers to three sets of interrogatories in detail, the plaintiff filed a fourth set of interrogatories; whereupon the trustees prayed the opinion of the court, whether they were bound to answer them, and the court decided that they were not. There is no positive provision of law as to the length to which interrogatories may extend, and from the nature of the case there can be no definite rule laid down ; and yet in practice there must be a limit. We can perceive this nowhere but in the judgment of the court upon all the circumstances. We have examined the last set of interrogatories sent up with the record, and we are satisfied, that either they have all been answered, in the answers to previous questions, or else they are impertinent and immaterial, so that, in whatever way answered, the answers would not affect the question of their liability.

Judgment of the court of common pleas, discharging the trustees, affirmed.  