afterwards delivered the opinion of the Court.
The plaintiff’s counsel are so far correct on the first point, that although the decision of the Court, on the disclosure of the trustee, or on other proof made against him, is not strictly a judgment, yet it partakes so far of the nature of a judgment, that the trustee is concluded by it to that time. He cannot be permitted to shew in his discharge, or in diminution of the funds found in his possession, any ■ matter which existed at the time of his examination, and which it was then in his power to shew; but the position of the plaintiiPs counsel cannot be supported further than this. Let us consider the trustee’s situation as bailee or trustee of the original debtor, whether under an express or implied contract. The law imposes upon the bailee or trustee certain duties; he must use due diligence and care in keeping or using the thing bailed or intrusted to his care and keeping, according to the nature of the bailment or trust • and for any default of such due diligence and care, he is answerable •to the bailor or cestueque trust. But if the thing be lost or de*312strayed by inevitable accident,'without any default in him, he is discharged. In this action against an absconding or concealed debt- or, by the decision of the Court, that the trustee has in his possesS¡011 the g00(js or estate of the principal debtor, the bailor or cestueque trust is changed 5 the plaintiff, the creditor, is substituted in place of the original bailor or cestueque trust. But no other change is thereby effected: no new duties, or other conditions are thereby imposed on the trustee. To every claim of that kind it is a sufficient answer for him to say non in haecfoedera veni, I entered into no such agreement. He is still holden to use the same care, diligence and good management, and no more. The same inevitable accident taking place after the disclosure, will excuse or discharge him in his new relation, which would have been a good excuse or discharge against the original bailor or cestueque trust; and would be a good cause to be shewn on his part why execution should not issue against his body or against his own proper goods and estate.
Although the Court do not decide on the defendant’s plea, I will briefly observe that the failure of the security does not sufficiently appear to have happened after the disclosure. And the scire facias, if it be a proper remedy, does not sufficiently set forth the record. It ought to set forth the whole disclosure or proof on which the Court decided, and which the statute.directs to be recorded, for the purpose of settling thereafter the rights of the parties. I should not be ready to admit, that a record merely that the person summoned, was adjudged to be a trustee, to a certain amount, without a record of the examination or proof on which the adjudication was made, would hold the trustee accountable for any thing.
But the ground bn which the Court decide is, that a scire facias is not the proper legal remedy in this case. It will be kept in view, that this proceeding against the trustee of an absconding or concealed debtor is not a common law proceeding, or governed by common law precedents : it is with us a mere statute provision, and the proceedings are regulated and directed by the statute. The process of foreign attachment, founded on the custom of London, was indeed somewhat similar to our statute provision — at least it had the same end in view; but it was a local custom, and not a part of the general common law of the Kingdom.
*313It is true, that at common law, a scire facias, to have execution '«f a judgment or-recognizance, which is a judgment with a defeasanee, lies in the same'Court where the judgment is of record. JBut in the case under consideration, the proceedings are regulated by the 5th Section of the Act directing proceedings against the trustees of absconding or concealed debtors; by which it is provided, “ That if the trustee or trustees shall appear at the Court, and it shall be made evident by his, her or their oath, or by other proof, that the trustee or trustees had monies, goods, chattels,. rights or credits of the principal debtor in his, her or their possession, at the time, of the service of such process, or at any time since, a record thereof shall be made, &c.” — ‘drat is, as I understand it, a record shall be made of the whole disclosure of the trustee, as made on oath, or of the proof produced by the plaintiff, the creditor, and that for the very good reason which I have before mentioned — for the purpose of settling the future rights of the parties. And such trustee or trustees shall be liable to the plaintiff for the money, goods, chattels, rights and credits so found in liis, her or their hands or possession, to the amount of the judgment recovered against the principal debtor, if so much there be, and execution shall issue on the judgment so recovered against the goods and chattels in the possession of such trustee or trustees.”
The finding of the Court against the trustee is nowhere called a judgment, and may with propriety be called an inquest; and is a foundation for future proceedings, as provided by the statute. The 6th Section points out the special mode of proceeding which the plaintiff must pursue in order to obtain the effect of his judgment against the principal debtor, out of the effects in the hands of the trustee. “ That if execution shall issue against the goods and chattels in the possession of the trustee or trustees, and a return be made by any proper officer on such execution, that such trustee or trustees, refused or neglected to expose such goods and chattels, or-to pay the amount of such execution, if there be sufficient in his, her or their hands or possession, the Court shall on the motion of the creditor, grant a rule to shew cause why execution ‘should not issue against such trustee or trustees 01 their goods and estate; and upon affidavit of the service of such rule on the, trustee or trustees, *314and no sufficient cause being shewn to the contrary, such execution may be awarded.”
A scire facias would not lie at common law, in this case, from any analogy, and the statute does not give it; but specially provides another remedy, and that remedy must be pursued: A remedy much better adapted to the nature of the case, and very wisely adopted instead of a scire facias. A scire Jadas would, as we see in this very case, often be attended with that delay and expense incident to the common course of judicial proceedings, and frequently more than exhaust the whole subject of litigation. The mode pointed out by the statute, is less expensive, more expeditious, and free from the technical forms and niceties, of special pleading. It gives a fair opportunity to examine at large into the real justice of the case, which will often depend on a variety and complication of circumstances. The trustee will be at liberty in shewing cause, to avail himself of every fact and legal matter, to discharge him from further liability either in whole or in part, by proper documents and affidavits, which the creditor may controvert in the same way; and the Court will be enabled to decide agreeably to the justice of the case. — It is much the most advantageous for all parties — certainly so for the plaintiff.
In this view of the case, (and we think it the only legal view which can be taken of it) the Court are clearly of opinion that a scire facias is not the proper remedy in this case. There must therefore be
Judgment for the defendant.