#### Aaron Willard Junior *versus*Thomas Sturtevant *et al.,*Principals, and Aaron Kingsbury, Trustee.

The respondent in a process of foreign attachment discloses that he has executed a bond to the principal defendant, with condition to pay him a certain sum ; that the defendant has written a letter to a third person, stating that a part of the consideration of the bond proceeded from other persons, and that a corresponding part of the sum secured was due to them ; that the respondent believes the letter (which he offers as part of his answer) to be true, and that the like information was given to him at the time when he executed the bond. It was held, that the letter was properly made a part of the answer, its contents being verified by the respondent; that the answer showed that the whole amount of the bond was not the property of the defendant; and that the respondent should not be charged as trustee for that oart which was due to the other persons.

The writ in this case was served on Kingsbury, in February, 1836.

In his answer, he discloses that he executed a bond to Thomas Sturtevant, dated November 27, 1819, the condition *200of which was, that he should pay to T. Sturtevant the sum of 1000 dollars in one year after the death of Rebecca Sturtevant, (the mother of Thomas,) and should pay the annual interest on that sum to Rebecca during her life, the bond stating it to be her just due ; that the bond, soon after it .was executed, was placed in the hands of Joshua Seaver of Roxbury, where it has ever since remained ; that the respondent was informed at the time, and has reason to believe, that it was originally taken by T. Sturtevant for the use of himself, his brother, two sisters, and a minor child of a deceased brother, the heirs at law of Rebecca ; that Rebecca died in May or June, 1827, and that T. Sturtevant drew an order, dated Mobile, July 16, 1827, upon the respondent, in favor of Daniel Sanderson, for 520 dollars, stating that sum to be in full for his part of the bond, and that in the letter to Sanderson, covering the order, T. Sturtevant says the other part of the bond belongs to the other heirs of his mother; that John Lowell esquire, in behalf of the other heirs, has given the respondent notice that they claim the other part, and says the bond was originally taken by T. Sturtevant for himself and them, and that they have an .n terest, to the amount of 120 dollars each, in the principal sum of the bond ; and that Mr. Lowell has furnished the respondent with his affidavit stating the particulars of the transaction, and with the letter and order above mentioned, all of which the respondent prays may be considered as a part of his answer.

*Oct. term*182*7*

By the letter it appeared, that the consideration of the bond was derived, in part, from the sale of a parcel of land, of the value of about 600 dollars, which had been devised to Rebecca S. for her life, remainder to her children ; that one fifth of this sum was due to T. Sturtevant, and four fifths to the other heirs of his mother.

The affidavit of Mr. Lowell coincided with the statement in the letter.

*Leland,*for the respondent,

contended that there was *prima facie*evidence in the case, that the consideration of the bond proceeded, in part, from property which did not belong to T. Sturtevant. *Cleveland*v. Clapp, 5 Mass. R. 202. Even before *St.*1817, *c.*148, an assignment disclosed upon slight evi*201deuce by one summoned in foreign attachment, was protected. The ground on which assignments were at first upheld in courts of law, was, that the assignor became a trustee for the assignee, and on this principle, the Court will protect the interest of third persons in the present case. 1 *Winch*v. *Keeley,*1 T. R. 619, and *Bottomley*v. Brooke, and *Webster*v. Scales, there cited ; *Wake*v. Tinkler, 16 East, 37 ; *Martin v.*Hawks, 15 Johns. R. 405 ; *Welsh*v. Hole, 1 Doug. 238 ; *Read*v. Dupper, 6 T. R. 361. A trust in a chose in action may be proved by parol. *Jones*v. *Witter,*13 Mass. R. 304; *Dunn*v. *Snell,*15 Mass. R. 481.

*S. J. Gardner, contra.*

The bond itself is the best (if not exclusive) evidence of the person to whom it is due. The respondent’s information and belief are founded on the affidavit of Mr. Lowell and the statement of T. Sturtevant, but these cannot be received as part of the answer. *Comstock*v. *Farnum, 2*Mass. R. 96 ; *Wood v. Partridge,*11 Mass. R. 488 ; *Stackpole*v. *Newman, 4*Mass. R. 85.

This case differs from that of an assignment. Here the *cestui que trusts*can have no action against the respondent, but their remedy is against T. Sturtevant. The decisions of the Court rendered it necessary to have a statute provision for trying by jury the validity of assignments disclosed in a process of foreign attachment. But the Court cannot extend the operation of the statute to this case *y*so that the mischief remedied in regard to assignments still exists here. It would be easy in any case, by an affidavit, to persuade the trustee to believe a representation made to him to be true, and there would therefore be no remedy against him for perjury; so that the rights of creditors would not be protected.

The burden is on the respondent to discharge himself by his answer. He says only that he is informed and believes. &c. *Sebor*v. *Armstrong, 4*Mass. R. 208.

The opinion of the Court was afterwards drawn up by

Parker C. J.

We think enough appears by the answer of Kingsbury, to show that the whole of the money in his hands, as due on his bond, is not the property of T. Sturtevant. The bond is made to T. Sturtevant, and he had a right to demand payment of it and to sue it; but still, as it appears that in *202taking the bond he acted as the trustee of others, it being giv in for the consideration of the purchase of an estate, the life interest in which was in his mother and the reversionary interest in his brothers and sisters and their children, the money secured by the bond ought in equity to be distributed among the devisees of the estate in the same proportions in which they held the estate. It is true, had T. Sturtevant become their debtor, and taken to himself this bond, the debt would be due to him in his own right, and might be attached by his creditors. And it appears from the tenor of the bond itself, that it was not claimed to be his property. The sum mentioned in the condition was to be paid in one year after his mother’s decease, the interest to be paid to her during her lifetime; and Kingsbury declares that the bond was lodged in the hands of Joshua Seaver, and that he was informed at the time the bond was given, that the money it secured was due as above stated, T. Sturtevant claiming only a part of it. The bond still remains in the hands of Seaver, T. Sturtevant not having claimed it as his own. The letter of T. Sturtevant is properly made a part of the answer, and he therein states the amount of his interest, for which he had drawn on Kingsbury. The trustee verifies the contents of the letter; which differs the case from *Stackpole*v. Newman, 4 Mass. R. 85.1

If it were not competent to the person summoned in a process of foreign attachment, to disclose any thing but what is within his own personal knowledge, the interests and rights of *cestui que trusts*would be in great jeopardy ; for their property would go to pay the debts of the trustee, and he might be wholly unable to respond. This should be placed on the same ground as assignments disclosed by the respondent in a trustee process, who may annex the instrument of assignment to his answers. From what appears in the condition of the bond, together with the fact of the bond’s being lodged in the hands of a third person, and the statement of T. Sturtevant verified by the respondent, we think that the respondent can be held only for the share of T. Sturtevant in the amount due on the bond.

1

 See Revised Stat. *c.*109, §15; *Hawes*v. *Langton,*8 Pick. 67; *Kelly*v. Bowman, 12 Pick. 386.