The persons summoned as trustees in [ * 92 ] this action, acknowledging themselves the assignees of Hull Of Hyde, say that they engaged to collect and pay over their effects to their creditors pro rata, who, on their parts, engaged to receive no payment but through the hands of the said agents. The defendants were parties to that agreement, and have already received a dividend of the said effects; and the said agents have another dividend ready to pay over. On these facts no question could arise. They must be adjudged trustees. But one of the defendants filed his affidavit in the case in the court below, stating that their claim upon Hull Hyde consisted in negotiable securities, which they have assigned over to one of their creditors for a bona fide debt since the said compromise. But we cannot take any notice of this affidavit, (a) The trustees have disclosed nothing respecting such assignment; and, indeed, after the agreement between the defendants and their debtors, H. 8p H., the notes had ceased to be negotiable. The trustees must stand chargeable upon this process for the sum they acknowledged to have been in their hands ; saving out of it the allowance they claim in their disclosure for their trouble and expense in this suit, (a)
Hawes vs. Langton & Tr. 8 Pick. 67. — Comstock vs. Farnam, 2 Mass. Rep. 96. — Barker vs. Taber, 4 Mass. Rep. 81 —Stackpole vs. Newman, 4 Mass. Rep. 85 Hatch vs. Smith, 5 Mass. Rep. 49. — Whitman vs. Hunt, 4 Mass. Rep. 272.