I am unable to agree with the opinion concurred in by a majority of the sitting members of the coui’t, the justice who ruled being, upon that account, disqualified.
The question whether the sum of money which was deposited by Robinson with the defendant, Walton, was simply deposited as the property of the former, so as to be subjected to attachment upon trustee process, or was in any way impressed with a trust in favor of the complainant, depends upon the construction of the agreement made by Robinson and Hathorn on Feb. 2, 1901. It seems to me that that agreement, in the light of the surrounding circumstances plainly shows that this sum of money was deposited in the hands of Mr. Walton as the property of Robinson, so that Walton thereby became the trustee of Robinson, and liable to be held as such upon trustee process; and that he did not hold this property as trustee for Hathorn under any circumstances or contingencies. And further *344that, if the agreement of the parties admitted of any doubt upon this question, the contemporaneous conduct of the parties and their counsel shows beyond all question that they so intended and understood the effect of this agreement.
The complainant was a judgment creditor of Eobinson; on February 2, 1901, the latter was before a disclosure commissioner, at the summons of the complainant to make a; disclosure; the debtor disclosed a considerable sum of money in his possession, more than sufficient to satisfy the creditor’s judgment, but claimed that this money was exempt from attachment and seizure under the Public Laws of 1897, chap. 320, § 14, the money having been received by him as a beneficiary under an insurance policy issued by a fraternal beneficiary association. The creditor, upon the other hand, claimed that this money was not exempt from seizure under the statute. The parties were then before a tribunal which was authorized and was bound to decide this question, however serious and difficult a one it may have been. The complainant was entitled to have the question decided in one way or the other by the commissioner. If decided in favor of the creditor’s contention, it was the duty of the commissioner to appraise and set off the money to the creditor, and upon its delivery to him by the debtor, and not until then, he would have acquired title to it. Stat. 1897, c. 330, § 9. But the creditor although entitled to a decision, and, in fact, entitled to a decision in his favor, as decided by this court in Hathorn v. Robinson, 96 Maine, 33, abandoned this proceeding and entered into an agreement with the debtor whereby the question might be decided in another way and upon an entirely different proceeding. By reason of this abandonment the commissioner did not decide the question, the money was not appraised, set-off, or delivered to the plaintiff. He acquired neither title to nor lien upon it under the disclosure proceedings, but voluntarily entered upon another method of procedure, the commencement of a trustee process to obtain the funds. Certainly up to this time this money had not become the property of the judgment creditor, the only question so far being whether or not it could be taken as the property of the judgment debtor to satisfy the claim of the creditor. But it was not taken, and, as we have seen, the pro*345ceedings before the commissioner were abandoned. The parties then made the agreement, which is quoted in full in the majority opinion of the court, wherein it was provided that Robinson should deposit the sum of $500 in the hands of his attorney, Walton, “and said Hathorn is to bring suit through his attorney against said Robinson as principal defendant and said Walton as trustee of said fund.” To me it does not seem possible that there can be any doubt as to the intention of the counsel who, presumedly, drafted this agreement, as to the character of this fund, as to whose property it was, and as to whom Walton was trustee for, when this language was used, and the principal and controlling object of the agreement was that a trustee process might be commenced to hold this fund in the possession of Walton as trustee for Robinson, the debtor, provided that it was not exempt from attachment. It is elementary that the purpose of a trustee process is to make an attachment of the property of the principal defendant in the hands of a trustee of the principal defendant; — it is so provided by statute, R. S. 1883, c. 86, § 2. Again, it is provided in sec. 4 of the same chapter, that the service of the trustee writ on the trustee “binds all goods, effects or credits of the principal defendant entrusted to and deposited in his possession. ” The purpose of the trustee process being then to attach the property of the principal defendant in the possession of the trustee, must not the parties and their counsel have known, when this agreement was made for the sole purpose of having property of the principal defendant in the hands of the trustee that could be attached, that that was the principal defendant’s property, placed there that it might be subjected to attachment by this process? Unless this money was the property of the principal defendant, it could not be attached in a common law action against the principal defendant and an alleged trustee. A plaintiff cannot obtain in such an action his own property in the hands and possession of a person who is alleged to be trustee for another.
That the counsel so intended and understood the effect of this agreement is shown by the fact that immediately after this money was deposited, the plaintiff commenced a common law action of debt upon his judgment, and attached this money as the property of the *346defendant in the hands of Walton, the trustee for the defendant. That common law action was entered in court and prosecuted, no objection being made by the trustee or the principal defendant as to the maintenance of this trustee process; the court at nisi prius held that the trustee was chargeable; and this ruling, after being reviewed upon exceptions by the law court, was sustained. The result in that ease necessarily involved the decision of two questions, first, as to whether or not this 'money was attachable under the statute of exemption above referred to, and second, a question, which, to be sure, was not discussed in the opinion, because conceded by counsel, whether or not this money was the property of the principal defendant in the hands of the alleged trustee, who held it as trustee for the principal defendant and for nobody'else.
That this fund was not placed in the hands of Mr. Walton as trustee for.the complainant, seems to me clear for the reasons already given, and, to my mind, that conclusion is strengthened by further analysis of the agreement in writing. That ágreement contains this provision, “said arrangement is made for the purpose of testing said Iiathorn’s right to said fund, and it is understood and agreed that all provisions of law shall be available in defense thereof the same as though said fund had remained in the hands of said Robinson.” But what right of Hathorn’s to this fund was to be tested in the manner provided for by the agreement? Certainly not his right as owner of the fund, because this lie did not claim, his only claim was a right to seize or attach the fund as the property of the defendant in satisfaction of his judgment; and the sole question that was to be determined by the court in the suit to be commenced, was as to his right to take this fund as the property of the defendant to satisfy his judgment. Again, what is meant by the clause “that all provisions of law shall be available in defense thereof the same as though said fund had remained in the hands of said Robinson?” Does it not show that the question to be determined was whether or not this money was subject to seizure or attachment as the property of the debtor, Robinson? This was the question argued and decided by the court in that case. 96 Maine, 33. The decision of the court was necessarily that it was the property of the defendant, else the alleged *347trustee would not have been charged, and also that it was not exempt under the statute relied upon. That this money was the property of the debtor, and that it was not exempt from attachment was, and must have been, the contention of the plaintiff’s counsel in the commencement, prosecution and argument of that case.
Before Robinson’s death, the complainant and his attorney, as well as the adverse party and the court, all acted upon the theory that Walton was trustee for Robinson and chargeable as such upon trustee process. After Robinson’s death, the whole theory of the complainant is changed and he now contends, in effect, that Walton was not the trustee of Robinson but was trustee for his client, the complainant, and that contention is sustained by a majority of the court. No principle of the law is better established, or is more sound in principle, than that no suitor shall be allowed to invoke the aid of the courts upon contradictory principles of redress, upon one and the same state of facts. That doctrine has been recently asserted by this court in Hussey v. Bryant, 95 Maine, 49. But in the present case the facts are identical in all respects with those of the common law action brought by the present complainant. In that action the plaintiff suitor claimed that Walton should be charged as the trustee of Robinson, and was successful in his contention, having obtained a final judgment of this court in his favor. In this case the same suitor, under the same facts seeks another and entirely inconsistent remedy. It seems to me that if there were any question as to the construction of the agreement of Feb. 2, 1901, this election by this complainant of his remedy by common law action and trustee process, acquiesced in by the adverse party, and brought to a successful termination for the plaintiff, ought to prevent his maintenance of this bill in which he seeks a remedy absolutely inconsistent with that of the former action.
Suppose Robinson had lived, is it conceivable, after the court had held that the trustee was chargeable because he had this money of the principal defendant in his hands, and after judgment had been entered, “trustee charged, etc.” that this court would have then held that it was unnecessary for the creditor to perfect his foreign attachment by proceedings under the statute; and, notwithstanding the *348fact, that the parties had already proceeded upon the theory that Walton was the trustee of Robinson, and the court had so decided, that in fact Walton did not hold this money as trustee for Robinson, but as trustee for Hathoru? And yet that such would be the decision of the court, is, it seems to me, the necessary result of the conclusion of the majority opinion; but Robinson’s death in no way affected the question under consideration. It was a contingency which evidently was not contemplated by the parties at the time this agreement was made, and thereby the foreign attachment by trustee process was dissolved.
For these reasons, I am unable to concur with the majority opinion, and believe that the ruling of the presiding justice at nisi prius was correct.