Marrett v. Equitable Ins.

DaNPORth, J.

By the disclosure of the alleged trustee, it appears that, at the time of the service of the plaintiff’s writ upon him, he was indebted to the principal defendants in the sum of §801, for which he had given his note, payable in twelve months from its date, June 5, 1865. This note is not negotiable. Dodge v. Emerson, 34 Maine, 94.

*539The trustee, then, must be charged, unless the disclosure shows some reason to the contrary.

There are two grounds upon which the discharge of the supposed trustee is claimed. That the debt is a contingent one, and that the alleged trustee has a claim, which he is entitled to set off against the note.

Neither the disclosure or the note, shows any contingency attached to the debt, but the contrary. The note by its terms is payable absolutely, and, in the disclosure, no suggestion is made that under any circumstances it is not to be paid, according to its tenor. The provision in the policy, which was the consideration for the note, that in case of loss the note, if unpaid, should be deducted from the amount, so far from relieving the maker of any liability on the note, secures its full payment. The only contingency arising from this clause, is as to the time of payment, and not as to the payment itself. It may hasten the payment, but cannot, in any event, delay or excuse any part of it.

Nor has the alleged trustee any claim against the principal defendants, which, by the provision of the R. S., c. 86, § 64, he can set oil against the note. The policy, at the time of the service of the plaintiff’s writ, was in force, but it was only a contingent claim, and could not, in any way known to the statute, have been filed in set-off to the note, for no loss had then happened. Ingalls v. Dennett, 6 Maine, 79. It is possible, that in some cases arising out of contingent liabilities, a trustee may be discharged, or charged, according to the facts as they exist at the time of the disclosure,— and, in such cases, the Court would allow the action to be continued until the contingency had become reduced to a certainty. Smith v. Stevens, 19 Pick., 23; Boston Type Foundry v. Mortimer & trustee, 7 Pick., 166.

It appears, by the disclosure in this case, that, on the 16th day of October, 1866, long after the year had expired during which the policy was to run, and after the note had become payable, and the supposed trustee liable to a suit thereon, no loss had happened. So that, at the time of the *540disclosure, the trustee had no means of defending himself against a suit in favor of the principal defendants, except this attachment. It does not appear that the trustee desired any further delay, to ascertain whether a loss would happen before the expiration of the policy. By the arrival of the vessel, and by the principles of law settled in the cases above cited, he must be holden.

Exceptions overruled.

Walton, J., concurred.