The alleged trustee had in his hands a check of a third party payable to his order, which had not been paid at the time of the service of the plaintiff’i writ, and which, by the terms on which he received it, was not then presentable. He is not chargeable for this. Hancock v. Colyer, 99 Mass. 187.
The plaintiffs claim that he is chargeable because he agreed not to present the check for payment until after twelve and a half o’clock of the day of its date. If the effect of this agreement was to create a debt due absolutely to the principal defendants, the alleged trustee would be chargeable. But he states in his answer that the defendants and other owners of the vessel placed the whole matter of the sale in his hands, to act according to his judgment. The agreement for delay in presenting the check, therefore, was not a breach of his instructions or a violation of his duty, which would render him absolutely liable to the owners for the amount of the check. Trustee discharged.