#### Jacob Hazen, in *Scire Facias, versus*Billy Emerson.

Where one summoned as trustee in a process of foreign attachment, discloses a conveyance of land to him from the principal defendant, he may be interrogated whether there was any agreement in writing or by parol, that he should dispose of the land and account *to*the defendant for the proceed?.

If such respondent admits that he held the land in trust to sell and account for the proceeds, he may be further interrogated as to the time of the sale and the disposition of the proceeds.

Where one summoned as trustee owes the principal defendant a debt which is barred by the statute of limitations, lie may rely on such bar, in his answers.

Emerson, being summoned as the trustee of Asa Pingree, made a general answer, that at the time of the service of the original writ be bad not any goods, effects or credits of Pingree in bis hands ; and that be had not promised to pay Pingree or to be accountable to him for any sum of money or othei thing whatsoever, within six years before the commencement of the plaintiff’s original suit; and that he never gave Pingree, or any other person on his account, any bond, obligation or other specialty ; and that Pingree never recovered a judgment against him ; and that no cause of action on the part of Pingree had accrued against the respondent since the commencement of the plaintiff’s original suit.

In answer to interrogatories the respondent says, that Pingree first became indebted to him more than twenty-five years ago, but that he believed he has not had any transaction with Pingree, in the way of business, for fifteen years ; that Pingree conveyed to the respondent a parcel of land in Baldwin, Maine, in 1809, and ten or fifteen years ago a lot of land in Bridgeton ; and at the time of the conveyance of land and timber in Baldwin, Pingree was indebted to the respondent in a large amount, and has ever since been indebted to him ; that there was no settlement between them at the time of that conveyance, except for the land ; that Pingree had no interest in the land at the time when the respondent sold it; that the respondent bolds notes of the purchasers, to a large amount, which he does not consider worth any thing ; that the respondent has np interest ‘n the land under the deed of Pingree ; that he holds Pingree’s *147notes for the debt due to him, and no other security ; that he does not know that Pingree had any other property than the land, out of which the respondent’s debt could have been satisfled ; that he does not consider that he was an agent of Pingree ; and that he has no recollection of any agreement, that Pingree should have any benefit from the respondent’s sales of the land and timber.

The respondent declined answering the following interrogatories, to wit : — When, to whom, and upon what terms, did you convey the same land, —When and how was the first payment made, — Have you ever received any money for timber from this land, other than from the sales already mentioned,— What was the state of the title to the land at or just before the conveyance to you, — What was the relative value of the land and timber, and the amount of the incumbrances you discharged before it was conveyed to you, — Was it not understood that the consideration paid by you for the land in Baldwin was much less than its value, — Why did you discharge the mortgages and take the conveyance.

Choate, for the plaintiff,

to show that the respondent was bound to answer these questions, cited *Russell*v. *Lewis and Tr.*15 Mass. R. 127, [Rand’s ed. 124, note a;] *Pierson*v. Weller, 3 Mass. R. 564. The plea of the statute of limitations is a refusal to answer, and if the respondent relies upon it, he is out of court. *St.*1794, c. 65, § 6. *[Parker C.*J. This is not properly a plea. I think the respondent may answer that he has had no dealings with Pingree for six years,1 as otherwise he might render himself liable for a debt barred by the statute of limitations.]

Saltonstall, for the respondent.

1

 See *Crossman*v. *Crossman,*21 Pick. 24.

*Per Curiam.*

We think the following interrogatory may be proposed to the respondent, — At the time you received a deed or deeds of land from Pingree, or at any other time since, was there any agreement in writing or by parol, that you should dispose of the same and account to him in any manner for the proceeds.—If the respondent admits that he held the land in trust to sell and account for the proceeds, there may ne a fur*148ther examination as to the disposition of the proceeds ; and as t0 t*ie t'me sa*e> anc* whether there is any balance due to Pingree.2 The answer of the respondent, that he had not promised to pay Pingree any sum of money within six years, is good *prima facie ;*but it may appear that he has sold the land within six years, under an agreement made more than six years ago.

2

 See *Guild*v. *Holbrook,*11 Pick. 101; *Webb*v. *Peele, 7*Pick. (2d ed.) 249 note 1 *; Bissell*v. *Strong, post,*562; *Gore*v. *Clisby,*8 Pick. 555; *Tucker*v *Clisby,*12 Pick. 22; *Lupton*v. *Cutter,*8 Pick. 298.