majority"> Wilde J.

delivered the opinion of the Court. Upon the facts disclosed by the trustees, we are of opinion, that they are not liable in this suit.

It appears by the disclosure, that before this writ was served upon them, they had been summoned as the trustees of the principal defendants, in a suit against them in favor of Stephen White, and it is admitted that they have been since adjudged trustees in that action. It is not contended, that any surplus remains in the hands of the trustees after satisfying White *85demand ; but it has been urged by the plaintiff's counsel, that at the time of the service of White’s writ, the trustees were not indebted for the mats purchased, because they were not to be paid for until they should be sold by the trustees. That this limitation of the time of payment merely would not discharge the trustees, seems to us very clear. The mats had been sold at an agreed price, part of which had been paid, and the trustees were indebted for the residue. It was a demand debitum in prmsenti, and rendered the trustees liable.

The plaintiff’s counsel have also argued, that the trustees were not liable in the former suit, as they had only a constructive possession of the mats, and as the mats had been at tached and taken by one of the creditors of Hodges and Wheelwright, as their property, the trustees might rescind the contract.

As to the possession of the mats, it is quite immaterial whether it was constructive or actual; the sale was complete, and the property in the mats was vested in the trustees. If they had held the mats in trust, and had been charged on that account, the distinction between actual and constructive possession, as laid down in the case of Andrews v. Ludlow and Trs., 5 Pick. 28, might be applicable. But the trustees were charged in the former suit for the price, and could not, by law, be charged on any other ground.

As to the supposed rescinding of the contract, it is clear that the attaching of the mats, as the property of Hodges and Wheelwright, could have no such effect. The taking by the sheriff under that attachment, was a tortious act, and the trustees recovered against him in an action of trespass. Kittredge v. Sumner, 11 Pick, 50. This, therefore, could m no respect affect the sale.

Trustees discharged.

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