¶1The opinion of the court was delivered by
¶2In this case, on the disclosure, allegations and proof, Charles Powers was adjudged the trustee of Jonathan Powers, the principal debtor. It appears, and is found by the county court, that the trustee had received of the debtor property and funds, to an amount sufficient to pay the debt of the plaintiff, and promised the debtor, that he would pay that debt, and that the debtor refused to convey the property to the trustee, until he thus promised.
¶3Without any regard to the question, which was attempted to be raised in this case whether the plaintiff could maintain an action in his own name against the trustee on this promise, which would involve the absurdity, attempted to be guarded against in Crampton v. Adm’r of Bullard, 10 Vt. 251, that either of two several parties could maintain an action on the same contract and for the same thing, — a proposition, which was also considered as untenable in Hall v. Huntoon, 17 Vt. 244, — we consider it undeniable, that, as the consideration for the promise passed wholly from Jonathan Pow*590ers, the debtor, and the promise was, by the trustee, made directly to the debtor, an action could be sustained thereon in the name of the debtor against the trustee; and, as this promise was made on the consideration of property actually received by the trustee, it was evidence of an indebtedness from him to the debtor, and constituted credits intrusted or deposited in the hands, or possession, of the trustee, according to the provisions of the statute.
¶4It is objected, that no action could have been maintained by the debtor against the trustee, without a previous demand, and that, because no such demand was found in the case, the trustee should not have been held chargeable. It is not necessary, to constitute this relation of debtor and trustee, that aright of action should actually exist and be perfected in the debtor, at the commencement of the trustee process. It, is sufficient, if property is deposited with the trustee, or that he is indebted to the principal debtor, though something farther may be requisite, to constitute a right of action therefor. Nor do we perceive any inconvenience to the trustee. He has the benefit of his own oath, in relation to his indebtedness ; and it must be immaterial to him, whether he is adjudged to pay to the debtor, or creditor, as he is subject to no cost, to be paid by him out of his own funds.
¶5The judgment of the county court is affirmed.