¶1The opinion of the court was delivered by
¶2It is settled that a trustee cannot be charged by reason of choses in action deposited in his hands. It was so decided in the case of Fairbanks & Loring v. Moses Baker, and trustee, Grafton, May term, 1831. And the law is the same in Massachusetts. 5 Pick. 28, Andrews v. Ludlow; 7 Mass. Rep. 438; 8 Pick. 298, Lupton v. Cutter; 9 Mass. Rep. 537.
¶3If, then, the trustee is to be charged at all, it must be on account of the notes given by himself.
¶4It has always been considered as settled, in this state, that a trustee, who has given a negotiable note to the principal, cannot be charged as a trustee on account of such note. The reason of this rule is founded upon the negotiable quality of the paper. If the trustee could be charged in such a case, then it might happen that either a bona fide purchaser of the note must lose the amount of it, or the maker, without any fault on his part, be compelled to pay it twice. To avoid such a dilemma, the rule was established. But in this case, when the process was served upon the trustee, he had the notes he had given in his own hands, and under his own control ; and those notes could not be transferred to any other person in the ordinary course of business, while he then held them, nor can he be held to pay them again, if he shall be charged in this suit on that account. The reasons on which the rule is founded do not then appear to exist in this case.
¶5When a suit is brought against a firm, not only the partnership property, but the separate property of each individual of the firm may be attached, and holden to pay the debt. And we see no reason why a person who is summoned as a trustee, in such a case, should not be adjudged a trustee, if he have any goods, effects, or cred- : its of any one of the firm in his hands.
¶6Trustee charged for the amount of his own notes.