oath need not be subscribed by the party making it. Where the Justice certified that the plaintiff, naming him, made oath to the certificate above by him subscribed, it was held to be sufficient, though it was not in fact subscribed by the plaintiff. Farrar v. Parker,

7 Met. 43. It is necessary that the oath or affirmation should be indorsed on, or annexed to, the writ.

If a writ be lost, the plaintiff may have leave to file a new writ, in the ordinary form, with a seal, a copy of the return, certified as such, and a certificate of the clerk, that it was filed by leave of the Court, on account of the loss of the original. It should also be indorsed, if an indorser be necessary, though the indorser, if there were one, would be no more discharged by the loss of it, than the maker of a note by the loss of the note. Whitcher v. Whitcher, 10 N. H. 44; Jackson v. Hammond, 1 Caines, 496; People v. Burdock, 3 Caines, 104; Petrie v. Benfield, 3 T. R. 476. If two writs for the same cause of action should be commenced at the same time, the Court will quash both on motion, as a vexatious abuse of the process of the Court. Davis v. Dunklee, 9 N. H. 545.

7*

CHAPTER VII.

TRUSTEE PROCESS.

HAVING considered, in the previous chapter, the general requisites of writs, we now propose to state particularly the practice under each peculiar form of

process.

Trustee Process. - The laws of the Commonwealth, previously enacted, and the decisions of the Courts of this and of other States upon this subject, have been codified in the one hundred and ninth chapter of the Revised Statutes, which contains no less than seventy-eight sections. It will be sufficient here to give a general view of the system, which is thereby established.

All personal actions may be commenced by this process, except replevin, case for malicious prosecution, or slander, written or verbal, and trespass for assault and battery, § 1. By the Statute of 1794, c. 65, a corporation could not be made a principal defendant in a trustee process, but this provision is repealed by the Revised Statutes; and it is further provided by the Stat. 1839, c. 158, that any corporation, incorporated by any other State, having property in this, may be sued here, and their property may be attached in the same manner as that of natural persons, resident in other States, and having property here. Upon the construction of this statute, it has been held, that the property of such corporation may be attached by the trustee process. Ocean Ins. Co. v. Portsmouth Railway Co. &Tr., 3 Met. 420.

The persons liable to be summoned as trustees are all corporations, § 6. Executors and administrators, § 62. Wheeler v. Bowen, 20 Pick. 563; Holbrook v. Waters, 19 Pick. 354; Boston Bank v. Minot, 3 Met. 507. The commissioners who revised the statutes, proposed that towns and other quasi corporations should not be subjected to the process, but the section was stricken from their report by the Legislature. Guardians are not subject to the process for the debts of their wards. Gasset v. Grout, 4 Met. 489. Sheriffs and other officers, who have received or collected any money or other thing, by virtue of any legal process, of the principal defendant, though he may have demanded it, and all public officers, who have money in their hands, merely as such officer, are not liable to the process for such money, c. 109, § 30.

The trustee process will not lie against any person, who is not an inhabitant of the State, though he may be here at the time of the service upon him, for some temporary purpose. Tingley v. Bateman, 10 M. R. 343; Ray v. Underwood, 3 Pick. 302. And it was determined in Hart v. Anthony, 15 Pick. 445, that it would not lie, though the trustee came into the Commonwealth and took an assignment of property from an insolvent debtor for the benefit of his creditors, and was here engaged in the execution of the trust, when the service upon him was made. Nor can a foreign corporation be charged as trustee, though its officers reside, and its books are kept, in this Commonwealth. Danforth v. Penny, 3 Met. 564.

It is otherwise, however, with foreign partnerships, where some of the members live within the State, (Parker v. Danforth, 16 M. R. 299; Hart v. Anthony, 15 Pick. 445,) but not where the moneys were ad

vanced to the House at the place of their domicil. Kidder v. Packard, 13 M. R. 80.

A mortgagee of personal property not in possession, is not chargeable as a trustee of the mortgagor, (Central Bank v. Prentice, 18 Pick. 396; Badlam v. Tucker, 1 Pick. 389,) even where the mortgage is to secure the performance of some other condition than the payment of money. Haskell v. Gordon, 3 Met.

268.

The old statute, adopting the words of the English statute, authorized this process, in cases where the goods, effects, and credits of persons, were so entrusted and deposited in the hands of others, "that the same could not be attached by the ordinary process of law." This limitation, which is found in the preamble of the statute, has been judiciously omitted in the Revised Statutes; though contained in the report of the commissioners, it was struck out by the Legislature ; and it is presumed, therefore, that a party may cause certain kinds of property to be attached in the hands of a trustee, though it be so situated, that it might be directly attached. Such is the case in Balkham v. Lowe, 20 Maine, 369. But in nearly all such cases, a direct attachment will be preferred, for the property will then be in the custody of the law, and the officer will be responsible for it upon his official bond; whereas, if it be attached in the hands of a trustee, it may be destroyed or wasted, or the trustee may become insolvent. It is prudent, however, to adopt this process, where the trustee makes any sort of claim to the property, in order that the nature of his claim may be inquired into, by examining him upon oath. But the trustee must in all cases have the actual possession or control of the property, so that he may be able to

turn it out on execution. Where, therefore, he has only constructive possession, as in the case of a ship and cargo at sea, he is not liable. Andrews v. Ludlow, 5 Pick. 28. There have been cases where the property has been attached, both in the hands of the trustee, and by the officer, and it is not known that the question, whether this can be lawfully done, has ever been directly adjudicated. The practice does not seem to be attended with any inconvenience, and may, in some cases, be useful. In such case if the trustee be charged, the officer's attachments will be necessarily dissolved, and if discharged, the officer may hold the property, if it be a proper subject of attachment, as in other cases. It is expressly provided, by Statute 1844, c. 148, § 2, that any personal property, subject to a mortgage, and being in possession of the mortgagor, may be attached as if it were unencumbered, and the mortgagee may also be summoned as trustee. Where property has been attached in the hands of a trustee, it may be afterwards directly attached on another writ, and taken out of the custody of the trustee, subject, however, to the lien created by the first attachment; and such officer will be liable to the trustee in case he is adjudged trustee, for not delivering it on demand. Bullingame v. Bell, 16 M. R. 318; Platt v. Brown, 16 Pick. 553; Rockwood v. Varnum, 17 Pick. 289.

As it does not fall within the plan of this treatise to state what may be attached by this process, and collate the numerous decisions which have been made upon these points, and as the one hundred and ninth chapter of the Revised Statutes is particularly full and precise, the remainder of this chapter will be devoted to the consideration of such points of practice,