
    John C. Jones versus Stephen Gorham and John D. Williams, his Trustee.
    The assignee of a bankrupt’s estate, after proof of a creditor’s demand, and after payment of one dividend, endorses on the notes which constitute that demand, “ I will be accountable to bearer of this note, for the benefit of the creditors of S. (i. e. the creditor of the bankrupt,) “ in proportion to their respective demands on him, for such dividend thereof as may hereafter be decreed by the commissioners on the within-named R’s estate, to be paid by me as assignee.” The assignee is still liable to a foreign attachment, as the trustee of such creditor.
    The only question m this case was, whether Williams was the rustee of Gorham at the time of his being summoned. By his answer to the usual interrogatory it appeared that, before the service of the summons, W. had been appointed sole assignee of one Samuel Rogers, a bankrupt, who at the time of his bankruptcy was indebted to Gorham in 9069 dollars 78 cents, on two negotiable promissory notes. A first dividend was ordered December 5, 1803, and Gorhams proportion of it was soon after paid to him. The second dividend, of which G.’s proportion was 450 dollars, was ordered on the ninth day of July, 1805. But previously to that time, viz., on the 18th day of October, 1804, W. had advanced the amount of that dividend to G., taking his promissory note for the same sum, payable three days before such second dividend should be ordered, * with lawful interest; and on • the 23d day [ * 376 ] of January, 1805, G. signed a memorandum on the back of the said note, declaring that the intention of the parties was that the said 450 dollars, and interest, should be applied towards the said second dividend, and expressly agreeing that they should be so applied. The amount due on the note exceeded the amount of G.’s dividend.
    On the same 23d of January, 1805, W., at the request of G., signed a memorandum upon each of Rogers’s notes to G. of the following tenor, viz.: “ Boston, January 23d, 1805. I will be accountable to bearer of this note, for the benefit of the creditors of S. G., in proportion to their respective demands on him, for such dividend thereof as may hereafter be decreed by the commissioners on the within-named R.’s estate, to be paid by me as his assignee , the sum I have paid on account of the second dividend, and interest, to be first deducted.” W. has since been informed, and believes, that those notes have been delivered to Messrs. D. D. Rogers, J. Lee, and S'. Brown, agents of S'. G.'s creditors, and are still in theii possession.
    No further dividend has yet been made or ordered by the com missioned on R.’s estate, but W. has received moneys, and has claims as assignee, which will probably form a dividend equal to the second.
    
      W. then goes on to state that G., on the 27th day of February, 1805, by an indenture made between him and divers of his creditors, conveyed to said creditors certain property, debts, and effects, (including the debt originally due from Rogers, the bankrupt,) in full discharge of their demands upon him.t
    
      Williams was summoned, as the trustee of Gorham in this action, on the 25th day of January, 1805.
    
      For the plaintiff,
    
    the amount of the second dividend was not claimed ; but it was insisted that, upon the facts above disclosed, the moneys collected and held by W. at the service of the summons were effects and credits belonging to G. The claim of G. against the estate of the bankrupt, having been admitted by the commissioners, was no longer negotiable or assignable. [ * 377 ] * The assignment from G. to his creditors, being posterior to the summoning of W. in this case, cannot come into consideration in the decision of the question before the Court.
    
      On the other side, it was contended that this case came within the scope and intent of the exception respecting negotiable -notes, contained in the twelfth section of the statute which gives this process against the effects of debtors in the hands of their trustees. The notes from R. to G\ were originally made negotiable, and the duty arising from them continued of the same nature after W. became the representative of R.
    
    But if it should be agreed that, by proving his debt before the commissioners, G. had destroyed the negotiable nature of those notes, it was still relied on that W.’s engagement on the 23d of January, two days before he was summoned in this case, to be accountable to the bearer of them, for the benefit of G.’s creditors, was a valid and good contract, and had made him liable to pay the future dividends to any person who should thereafter be fairly possessed of them. The intent of the legislature, in this twelfth section, unquestionably was to secure a person from attachment by this process, who, by the nature of the contract, was unable to say in whose hands his acceptance or promise was. To show that W. was liable to the action of the assignee of these notes, the cases of Fenner vs. Meares, 
       and Surtees & Al. vs. Hubbard, 
       were cited; and it was contended that the case at bar was stronger than this from Espinasse, in .which the assent was posterior to the assignment whereas, in the principal case, the assent and promise to account were prior to the assignment. The contract of W. was a fair one, and its object being to secure this property for the benefit of G.’s creditors in general, the Court will incline to favor it, rather than the attempt of a single creditor to appropriate the whole to his separate use.
    
      For the plaintiff, in reply,
    
    it was conceded that the cases cited oy the counsel on the other side were good law, but have no bearing on the question before the Court. Williams was legally * possessed of all the bankrupt’s property. The relation [ *378 ] between him and Gorham, as a creditor to the bankrupt, was fixed and immutable, and could no more be legally changed than the relation between a judgment debtor and creditor.
    In answer to the observation upon the fairness of this assignment, and its object being for the benefit of all G.’s creditors, it was replied that the case showed no more than that “ certain of the creditors ” were to be benefited. The very bringing the present suit showed that all G.’s creditors were not parties to the indenture.
    Suppose W. had been possessed of certain specific articles of merchandise, the property of G., and had promised G., at his request, to hold them for the benefit of all G.’s creditors — a creditor of G. attaches them as G.’s property ; — it will not be denied that such attachment would hold.
    In the case of Sigourney vs. Blagg and Trustee, in this county, the facts, as recollected, were that B. had assigned all his effects for the benefit of all his creditors, who, with the exception of one, had agreed to the assignment, and discharged B. That creditor brought his action, summoned the assignee as the trustee of B., and he was held to be such by the Court, and the creditor recovered his whole debt.
    
      
       2 W. Black. 1269.
    
    
      
       4 Esp. Rep. 203.
    
   The opinion of the Court was afterwards delivered by

Sedgwick, J.,

who, after stating the principal facts contained in the answer of Williams,' including his information and belief of the assignment and delivery by Gorham of Rogers’s notes to Messrs. Rogers, Lee, and Brotan, observed that neither of these last facts is important in determining the case on the ground on which it is placed by the arguments of the counsel for Mr. Williams. They say that by his undertaking, expressed in his endorsement on the back of those notes, they became assignable, according to the cases cited from Blackstone and Espinasse, so as to authorize the assignee to support an action in his own name ; and that, from the time they were so assignable, they became negotiable securities, and by the statute exempted from the process in this case.

Hall for the plaintiff.

Otis and C. Jackson for the trustee.

[ *379 ] *If every thing laid down in the cases of Fenner vs. Meares, and Surtees vs. Hubbard, be good law, I do not think they conclude to the purpose intended by the counsel of Mr. Williams. “ Credits” generally are attachable. That the expected dividend was such a credit as might have been attached, is not denied ; but it is said, that the endorsement of Williams is such, that it brings the future dividend, as a credit in his hands, within the exemption expressed in the twelfth section of the act. That section is in these words — “ that no person shall be considered or adjudged to be a trustee, within the intent and meaning of this act, by reason or on account of his having made, given, endorsed, negotiated, or accepted, any negotiable security whatever.” I am of opinion that it was the intention of the legislature to exempt only those negotiable securities, which were made such in their original construction. There is the strongest reason why they should be exempted. They are in their nature commercial, and their facile and secure passing from man to man, as a medium of exchange, is of great public utility. But if they were rendered subject to this process, their credit must be materially injured, if not ruined. Besides, the words made, given, endorsed, negotiated, or accepted,” seem to apply with peculiar propriety to this species of contract.

It was said by one of the counsel for Mr. Williams, that the notes from the bankrupt were negotiable, and, therefore, within the twelfth section of the act. It is to be observed, in answer to this objection, that the obligation of Williams to pay Gorham the dividend is noi from his having “made, given, endorsed, negotiated, or accepted,” the notes; but from moneys coming into his hands belonging to the estate of the bankrupt.

In this view of the case, it is not important to determine the question made by the plaintiff’s counsel whether a debtor can, by an assignment for the use of his creditors generally, protect his property against one of his creditors, who did not assent to the assignment. The discussion of that question might require extensive investigation!

We are of opinion that Williams must be adjudged the trusteo of the defendant. 
      
      
         Vide Oliver vs. Smith & Al. 5 Mass. Rep. 103.
     