Samuel S. Arnold vs. William Elwell & al. and George W. Bachelder, Trustee, 13 Me. 261

The opinion of the Court, after a continuance, was drawn up by Weston C. J. Whether the trustee shall be charged or not, depends upon the question, whether the schooner Adventure is or is not to be considered as goods or effects of the principal in his hands, at the time of the service upon him of the process of foreign attachment. The vessel, then at sea, had been previous to that time regularly assigned to the trustee. In virtue of the instrument of assignment, the property was transferred and passed to him, subject to be defeated, if he did not take possession of the vessel on her arrival from sea.

Abbot on Shipping, 10; Atkinson v. Maling et als., 2 T. R. 462; Putnam v. Dutch, 8 Mass. R. 287; Badlam v. Tucker et al., 1 Pick. 389. From the time of the assignment, she was subject to the control of the trustee, who was clothed with all the attributes of ownership. He could have insured the property, or assigned it to another. The vessel was in his hands, as effectually, although not with the same security, as if she had been in port. It is insisted, that it was contingent, whether she would ever arrive, and whether the trustee would realize any thing from her.

But he might have sold her while at sea, for a valuable consideration, or he might have made an insurance, which would have given him an equivalent, if she had been lost. Goods in a warehouse, after the service of this kind of process, may be destroyed by fire, before the rendition of judgment, or the issuing of an execution. The continued possession of whatever is liable to be consumed or destroyed, is attended with a certain degree of peril or hazard.

If they are lost, before they are turned out on execution, without any fault or negligence on the part of the trustee, and he has not been indemnified by insurance, the trustee might avail himself of this matter, by way oí defence to a scire facias, which might be brought against him.

But when he has, on the day of the service of this process upon him, the entire control, disposition and management of goods and effects, made over to him by his principal, but to which he has no title against an attaching creditor, he is trustee; and has no claim to be discharged, because the property may be exposed to subsequent hazards and contingencies. In Grant et al. v. Shaw, 16 Mass.

R. 341, the principal debtors had consigned goods to the defendant, who while these goods were at sea in their transit, was served with a process of foreign attachment; and he was discharged, upon the ground, that he had neither accepted the consignment, nor received the goods. In Andrews v.

Ludlow and trustees, the trustees disclosed an assignment to them of certain property by the principal, a part of which was a portion of two vessels with their cargoes, then at sea; but they had been previously assigned and pledged to a third person to secure a sum of money, which pledge was in full force, when the trustee process was served. While thus pledged, the vessels were not liable to attachment, as the property of the principal. He had only an equitable interest, which could not be reached by attachment in his hands, or when transferred to his assignees. Badlam v. Tucker, 1 Pick. 389.

At the time of the service of this process, the trustee had all the possession, of which property so circumstanced was susceptible. No owner could have over it a more perfect control. If goods have been deposited with a trustee, it has never been held necessary that they should, when process is served, be within the State; although they cannot otherwise be turned out on execution. Suppose the property in question had been goods, under the control of tlio trustee, in a warehouse in Boston.

There would be no contingency in regard to his possession ; but if he chose to deliver the goods upon the execution, rather than pay their value, they might be lost in the transit. The vessel in controversy was available property, under the control of the trustee, at the time of the service of the writ. He could on that day, if the foreign attachment had not interposed, have sold and transferred her for a valuable consideration. And the opinion of the court is, that Bachelder must be adjudged trustee, according to his disclosure.