*94The opinion of the Court was by
■Weston C. J.The question submitted to our consideration' is, whether the supposed trustees, or either of them,, at the time of the service of the plaintiff’s writ upon them, had in their hands and possession any goods, effects or credits of the principal debtor. And this must be determined upon the respective disclosures, .and the documents referred to and copied' therein.
The plaintiff claims to charge them, upon the contract made by William Weston, with the trustees or directors of the Attian Land Association, his operations under it, and the assignment of the sums to which they were entitled to John Bradley, the principal debtor. If there was no assignment, or none, the benefit of which Bradley was entitled to receive, at the time of the service of the writ, the trustees are entitled to be discharged.
An assignment from that association is disclosed ; but it is manifestly and on its face, a conditional one, and as such was adopted and accepted. The evidence of the assignment is an order, drawn on the eighteenth of April, 1837, in behalf of the association, on Weston, directing him to pay to Bradley, fifteen thousand dollars, out of the proceeds of the logs, cut under the contract, provided however, he shall see that whatever sums, he shall pay said Bradley, and take a receipt therefor, are indorsed upon a certain note described. Weston accepted the order, upon the terms prescribed. The company might have very good reasons for requiring the condition upon which they insisted. It might be necessary for their protection. It qualified the assignment, and was made essential to its validity. It determined the condition upon which alone Weston was authorized to pay Bradley, or Bradley was entitled to receive payment.
From the affidavit of Messrs. Fessenden Beblois, which is adopted and made part of the disclosures, it appears, that before the service of the plaintiff’s writ, Bradley had negotiated the note described in the order, and that it passed to, and became the property of the Oriental Bank, and was in the hands of Fessenden Beblois, as their attorneys. By the protest of the notary, it appears to have been negotiated before its maturity. But that fact is not essential. If it ceased to be Bradley’s property before the service of the writ, he was no longer entitled to receive the *95money under the order, not being able to comply with the condition it contained. It results, that the right of Bradley, in virtue of the order, was gone, when he negotiated the note. Whether the indorsees of the note are entitled to the benefit of the order, as an attendant or accompanying security, is a question, which need not be decided. It is sufficient to defeat the plaintiff’s attachment of their debtor’s credits, in the hands of the supposed trustees, if, when it was made, their debtor had none, which could be made available.
It is however insisted, that the trustees ought to be charged, in virtue of orders subsequently drawn on Weston, in behalf of the association.
Weston discloses a further order drawn upon him by them, requiring him to pay to Bradley, without condition, the further sum of $$1573, being the balance assumed to be due from Weston, beyond tbe amount of the former order of fifteen thousand dollars. And he states, that no other order or orders from them in favor of Bradley, have ever been presented to, or accepted by him. The disclosure of Bradbury T. Dinsmore refers to another order in the possession of Bradley, which had not been presented or accepted, and which therefore could create no liability on the part of Weston.
Weston in his disclosure, denies, that under the contract, any balance could arise against him, beyond the fifteen thousand dollars, upon which the second order could operate. There might be a balance, according to the survey made by Samuel F. Weston. That survey, Weston, the supposed trustee, insists is erroneous, the surveyor being ignorant and unskilful, and not conforming to the Kennebec survey, which the contract adopts. Samuel F. Weston’s survey was not conclusive upon the trustee, unless made according to the Kennebec survey. The trustee is bound at his peril to state the facts truly, and upon the question before us, the disclosure must be taken to be true. Upon a trial between the Aiiian Land Association and William Weston, the jury might be of opinion, that Samuel F. Weston did conform to the Kennebec survey; and if so, his estimate was to be conclusive. Unless this was the fact, the supposed trustee was not under the contract bound by his survey. He undertakes to state in his disclosure that the fact was otherwise, and as has been before stated, the truth of the disclosure must be assumed, as the basis of our decision. It is not therefore shown, *96that Bradley had any rights or credits under the second order, subject to the plaintiff’s attachment. And upon the whole it does not appear to us, that either of the trustees had, at the time of the service of the writ, any goods, effects or credits, subject to the plaintiff’s attachment.
Trustees discharged.