64. If any alleged trustee has in his possession any goods, effects, or credits of the principal defendant, which he holds under a conveyance fraudulent and void as to the defendant's creditors, he may be adjudged a trustee on account thereof, although the principal defendant could not have maintained an action therefor against him.138 (s) In determining whether the supposed trustee holds goods, effects, or credits of the principal defendant under a conveyance thereof fraudulent as to creditors, the determination is to be made by the court as if sitting in equity; the denial of the trustee of any fraudulent design must be allowed the force it would have in an answer to a bill in equity, charging him with the fraud; and if the facts disclosed show the denial to be untrue, he must be adjudged to be chargeable as trustee.134 In a case coming within this section of the statute, the ascertainment of the matters of fact comes within the province of the court, to whose decision exceptions do not lie.134 When the conveyance is alleged to be fraudulent, if the circumstances, as exhibited by the disclosures of the supposed trustee, present a case so unlike anything that would ordinarily occur in a bona fide transaction, that it excites strong suspicion of fraud, and the supposed trustee, if in fact innocent, has the means of making his innocence appear quite within his power, and does not do it, it is but reasonable, that the conclusion should be against him.134 If a supposed trustee holds goods, effects, or credits of the principal defendant, under a conveyance from him which is fraudulent as to creditors, he will be charged, if the fraud was actual, whether the plaintiffs became a creditor before or after such conveyance. But if the fraud was merely a legal one, he will be discharged unless the plaintiff was a creditor at the time of such conveyance.185 One who has been adjudged trustee, because holding goods under a sale which was fraudulent and void as against creditors of the principal defendant, is in privity with him.136 A person cannot be charged as trustee by reason of a conveyance to him of real estate or any interest therein, though such conveyance be fraudulent as to creditors.187 But it is otherwise if he has in his possession any goods, effects, or credits of the principal defendant, held under a conveyance fraudulent as to creditors, although the principal defendant could not have maintained an action against him.187 The character of the purchase of the defendant's goods by the alleged trustee may be tested by the honesty of the parties in other acts which are a part of the same transaction.187 The conveyance will not be held fraudulent and void as to creditors, unless the vendee had knowledge of the fraudulent intention of the vendor and assisted in carrying it into execution.137 65. Every trustee shall be allowed to retain or deduct 133 R. S. c. 86, § 63.-134 Page v. Smith, 25 Me. 256.-135 Fletcher v. Clark, 29 Me. 485.-136 Glass v. Nichols, 35 Me. 328.-137 Blodgett v. Chaplin, 48 Me. 822. out of the goods, effects, and credits in his hands, all his demands against the principal defendant, of which he could have availed himself if he had not been summoned as trustee, by way of set-off on trial, or by a set-off of judgments or executions between himself and the principal defendant, except unliquidated damages for wrongs and injuries; and he shall be liable for the balance only, after their mutual demands are adjusted.188 66. When a person is adjudged trustee on disclosure in the original suit, the amount for which he is chargeable shall be fixed by the court, subject to exceptions, and be conclusive on scire-facias, unless, for cause shown, an additional disclosure is allowed; but on default the amount need not be expressed in the judgment; and in all cases on scire-facias, if he is adjudged trustee, the amount for which he is chargeable shall be expressed in the judg (t) In scire-facias against one charged as trustee, the facts disclosed in the original process are properly to be considered with those introduced in the disclosure on the scire-facias, in order to determine whether the trustee was rightly chargeable, and how much the plaintiff shall recover of him.140 All doubtful or uncertain statements in a disclosure are construed against the trustee.140a 67. If any alleged trustee is discharged, the judgment shall be no bar to an action brought by the principal defendant against him for the same demand.141 (tt) When a trustee suit is commenced prior to one by the principal defendant against the trustee, a judgment in the latter in favor of the trustee is not conclusive upon the plaintiff in the former upon the question of the trustee's discharge.141a 68. When a person adjudged a trustee in the original action does not, on demand of the officer holding the execution, pay over and deliver to him the goods, effects, and credits in his hands, and the execution is returned unsatisfied, the plaintiff may sue out a writ of scire-facias against such trustee, from the court or justice that rendered the judgment, to show cause why judgment and execution should not be awarded against him and his own goods and estate, for the sum remaining due on the judgment against the principal defendant.142 (u) A writ of scire-facias cannot be lawfully issued against one who has been adjudged a trustee, before the return day of the execution against the principal defendant. 148 Nor after the 138 R. S. c. 86, § 64.-139 R. S. c. 86, § 65.-140 Page v. Smith, 25 Me. 256140a Brainard v. Shannon, 60 Me. 342.-141 R. S. c. 86, § 66.-141a Webster, V. Adams, 58 Me. 317.-142 R. S. c. 86, § 67.—143 Roberts v. Knight, 48 Me. 171. return day if the return of "unsatisfied" was made before the return day. 143a (v) Under this section, in scire-facias against a trustee, the plaintiff cannot recover judgment for more than appears to be due on the execution issued on the original judgment; and where such execution appears to be satisfied in part by levy on the property of the debtor, evidence is inadmissible to show that such property did not in fact belong to the debtor, and that the plaintiff had refunded its value to the real owner.144 69. After such writ has been duly served on him, if he neglects to appear and answer thereto, he shall be defaulted; and if he was not duly examined in the original suit, judgment shall be rendered against him for the whole sum remaining due on the judgment against the principal defendant.14 145 70. When all the defendants in a writ of scire-facias are defaulted, not having been examined in the original suit, the court may enter up joint or several judgments, as the case requires, and issue execution in common form,146 71. If any trustee, defaulted on the scire-facias, was examined in the original suit, judgment shall be rendered on the facts stated in his disclosure, or proved at the trial, for such part of the goods, effects, and credits, for which he is chargeable as trustee, as remain in his hands, if any, or so much thereof as is then due and unsatisfied on the judgment against the principal defendant; but if it appears that such person paid and delivered the whole amount thereof on the execution issued on the original judgment, he shall not be liable for any costs on the scirefacias,147 (w) On scire-facias judgment can only be rendered for the amount of the unpaid judgment in the original suit, with legal interest and costs.148 72. If the trustee appears and answers to the scirefacias, and was not examined in the original suit, he may be examined as he might have been on the original suit; and if, on such examination, he appears not chargeable, the court shall render judgment against him for costs only, if resident in the county where the original process was returnable; but if not resident in such county, he shall not pay or recover any costs.1 149 143a Austin v. Goodale, 58 Me. 109.-144 Sawyer v. Lawrence, 40 Me. 256.-145 R. S. c. 86, § 68.-146 R. S. c. 86, § 69.-147 R. S. c. 86, § 70.-148 Tyler v. Winslow, 46 Me, 348; Sawyer v. Lawrence, 40 Me. 206.-149 R. S. c. 86, § 71. 150 (x) Generally to a defendant in scire-facias, no ground of defense is open which he might have taken in the original suit; but whether an alleged trustee who has suffered a default in the original suit, can by a disclosure on scire-facias take objection to the jurisdiction, quære. But where a guardian was charged upon his disclosure in the original suit, as trustee of his ward, without taking exceptions, he was allowed on scire-facias to make further disclosure; and although he could not be legally held as trustee, costs of the last suit were allowed the plaintiff for the defendant's neglect in not excepting to the ruling in the original suit. 151 (xx) If an alleged trustee does not disclose in the original action he is liable to costs on scire-facias, although the attachment is dissolved before judgment is recovered in the original action.15la 73. If he had been examined in the original suit, the court may permit or require him to be examined anew in the suit of scire-facias; and he may then prove any matter proper for his defense; and the court may enter such judgment as law and justice require, upon the whole matter appearing on such examination and trial.15 (y) In scire-facias against one who had been charged in the original suit facts disclosed and proved in both suits are to be considered in determining the chargeability of the trustee as well as the amount.153 It is discretionary with the judge whether to "permit or require" a trustee who has been examined in the original suit, to be reexamined in a suit of scire-facias.154 If a trustee be charged in the original suit, and discharged on scirefacias, he will not be liable to pay costs, but if he seasonably disclose on the original, suit, either at the first term or at any succeeding term by agreement, he may recover costs.15 155 74. When any person is adjudged a trustee, if the goods, effects, and credits in his hands are not demanded of him by virtue of the execution within thirty days next after final judgment, the attachment of them by the original process is dissolved; and they are liable to another attachment as though the prior attachment had not been made; but when the debt due from the trustee to the principaldefendant is payable at a future day, or specific property is in his hands which he is bound to deliver at a future day, the attachment shall continue until the expiration of thirty days after such debt is payable in money, or the property aforesaid is demanded of the trustee.1 156 (2) A judgment against a trustee will not operate as a bar to protect him against an action by the principal defendant, unless 150 Smith v. Eaton, 36 Me. 298.-151 Hanson v. Butler, 48 Mc. 81.-151a Bowker v. Hill, 60 Me. 172.-152 R. S. c. 86, § 72.-153 Page v. Smith, 25 Me. 256.-14 McMillan v. Hobson, 41 Me. 131.—155 McMillan v. Hobson, 46 Me. 91.-156 R. S. c. 86, § 73. a demand for the goods, effects, and credits had been made within thirty days from the judgment by an officer holding the execution. When one is adjudged trustee for specific property which he is bound to deliver at a future day, a demand need not be made within thirty days next after final judgment, but when the court fixes a time, under R. S., c. 86, § 50, within which plaintiff may tender amount due on mortgage, a demand within thirty days next after the tender is necessary to fix the trustee's liability.158 75. If there is no second attachment, the principal defendant in the suit may recover the goods, effects, and credits, if not so demanded, as if they had not been attached.159 76. When the officer holding the execution cannot find the trustee in the State, a copy of the execution may be left at his dwelling-house, or last and usual place of abode, with notice to the trustee indorsed thereon, and signed by the officer, signifying that he is required to pay and deliver, towards satisfying such execution, the goods, effects, and credits, for which he is liable. When such trustee has no such dwelling-house or place of abode in this State, such copy and notice may be left at his dwelling-house or place of abode without the State, or be delivered to him personally by the officer or other person by his direction; and such notice in either case shall be deemed a sufficient demand for all the purposes mentioned in the two preceding sections.160 77. The judgment against any person as trustee shall discharge him from all demands by the principal defendant or his executors or administrators, for all goods, effects, and credits paid, delivered, or accounted for by the trus tee thereon; and if he is afterward sued for the same by the defendant or his executors or administrators, such judgments, and disposition of the goods, effects, and credits as above stated, being proved, shall be a bar to the action for the amount so paid or delivered by him.1 161 (a) A judgment against a trustee cannot afford him protection beyond the amount due upon the judgment.162 Thus after judg ment against a debtor and his trustee, if the principal pay to the judgment creditor a part of the amount, and thus relieve the trustee from his liability to that extent, and then bring a suit and obtain a verdict against his debtor (the trustee) for the amount thus paid; although there may be some difficulty in per 157 Bachelder V. Merriman, 34 Me. 69; McAllister v. Furlong, 36 Me. 307.— 158 Woods v. Cooke, 58 Me. 282.-159 R. S. c. 86, § 74.-160 R. S. c. 86, § 75.-ici R. S. c. 86, § 76.-162 Norris v. Hall, 18 Mc. 332. |