#### John Wood *versus*Nelson Bodwell *et al.*Principals, and George A. Waldo, Trustee.

If a debtor, at the request of his creditor, in order to avoid being summoned and charged on the trustee process, gives his own negotiable note to the creditor for the amount due, he will not be chargeable as the trustee of the creditor.

Waldo, the supposed trustee, made answer to the following effect : — On December 4, 1828, as the agent of Dins-moor, one of the principal defendants, I received of one Channing, at New York, the sum of *$*771, and I brought the amount in a thousand-dollar bill of one of the New York banks. On my way home to Methuen, I endeavoured to get the bill changed at the Andover bank, in order to pay Dinsmoor his money, but the cashier declined changing it. Immediately on my return, on the 11th of December, seeing Dinsmoor, I told him that his money was in a thousand-dollar bill, and he said *2731 might credit him with $ 171 for my expenses and money advanced on his account, and give him my note for $ 600 until I could get the bill changed. I accordingly gave him my note, payable to him or order, on demand, for $ 600, and then went to my house, and had been there about half an hour when the officer came to serve the trustee writ on me. I wrote the note on the same day, at an inn in Reading, so that if I did not get the bill changed, I could give Dinsmoor a note, Dinsmoor having told me before I left home, that he wanted his money to go ratably among his creditors, and that he wanted me, as soon as I got home, to settle it with him, for he was afraid I should be trusteed.

*Nov.*18fA 1830

Choate, for the plaintiff,

relied on *Dennie*v. *Hart & Tr.*2 Pick. 204. He also cited *Perry*v. *Coates,*9 Mass. R. 537; *Floyd*v. *Day,*3 Mass. R. 403; *Staples*v. *Staples,*4 Greenl. 532.

*April term*1832, *at Ipswich*

*Duncan,*for the trustee.

Shaw C. J.

delivered the opinion of the Court. The only question is, whether Waldo is chargeable upon his answer as trustee.

It appears by the answer of the trustee, that he had received a sum of money at New York, for Dinsmoor, one of the principal defendants ; and the question is, whether he discharged himself from the debt thereby created, by giving the promissory note in the manner and under the circumstances disclosed in his answer.

It is contended, on the part of the plaintiff, that it sufficiently appears that the giving of the note by the trustee to the principal wras merely colorable, and so understood by the parties, and therefore the trustee still continued to be the debtor of the principal, as in the case of *Dennie*v. *Hart & Tr.*2 Pick. 204. This question must be decided upon the facts disclosed by the trustee ; and upon these facts the Court are of opinion, that the giving of this promissory note was intended and understood to be payment of the debt, *pro tanto,*that the note was to be the absolute property of the promisee, to dispose of it as he saw fit, and that the trustee, to that extent, was discharged. This distinguishes the case at bar from the ease cited, which proceeded expressly upon the ground, that *274the check given by the trustee remained under his control and subject to his order, and so did not operate as the discharge of the precedent debt. Here if the trustee had accomplished his first purpose, that of getting the thousand-dollar bill changed, and had given over to the principal $ 600 in bank notes at the time he gave his own note, it would have been a valid discharge, and would have prevented any creditor from holding him by attachment as trustee, although the intent of such immediate payment was to prevent the service of a trustee process by paying over the funds. If, as the trustee declares under oath, his own promissory note was given and accepted for the like purpose, both parties understanding that the transaction was conclusive and definitive, and that the trustee was to esteem the bank note as his own, and the principal to receive the promissory note as his own, to collect or negotiate as he should see fit, we can perceive no reason for departing from the established rule of law, as adopted in this Commonwealth, that a promissory negotiable note given for a debt is payment; and upon the question whether trustee or not, the answer of the trustee must be taken as conclusive on the facts.1

*Trustee discharged.*

1

 See *Barnard*v. Graves, 16 Pick. 41.