Carrique v. Sidebottom

Shaw, C. J.

There was an objection on the part of the plaintiffs, that the trustees had failed to answer a pertinent question put by the plaintiffs, and that it was irregular to permit them to make an additional answer, after their answers to the interrogatories of the plaintiffs had been filed.

In regard to the first, it appears to us that the trustees did answer fully, and that the question, which they declined to answer, and which was, to say the least, not very courteous in manner, merely demanded of the trustees to state distinctly, what they had fully stated before.

In regard to the other point of practice, we think that it was not only competent, but entirely proper for the court, if the trustees discovered that they had stated a fact in the answer incorrectly, or in terms which would admit of an inference or implication not intended by them, to allow them to make an additional answer, without further interrogatory, correcting or qualifying the supposed erroneous answer. Hovey v. Crane, 12 Pick. 167.

But the court are of opinion, that die order drawn by Side-bottom, on Porter, the clerk of the company with whom he was at work, requesting him to pay his wages to Leonard & At wood from month to month, as they should become due, made a year and a half previous to the service of the trustee pro cess, did not prima facie constitute an assignment to them. We do not put it upon the ground, that the acceptance made by Porter would not be deemed the act of the company, if, in other respects, it had the qualities of an assignment. But the circumstance, that it was drawn on the clerk and not on the company, concurs with the other circumstances to show that it was rather an authority to pay, than an assignment.

It was not a draft for the payment of a sum of money certain, or to be made certain afterwards. It was not drawn upon any fund existing, or to be created under any contract or obligation. It was made long previously, with no consideration expressed or shown aliunde. It does not appear by the trustees’ answers, that Leonard & Atwood, although they knew of the service of the trustee process, gave any notice that they had made any advances on the faith of the order, or that they claimed the money by virtue of it. In all these respects, the case differs wholly from that of Bourne v. Cabot, (post. 305,) decided at the present term.

The case of Willard v. Butler, 14 Pick. 550, cited for the trustees, has no beaiing on this case. There the trustee was discharged, because there was no original contract on the part of the employer to pay the workman in money. On the contrary, there was an express agreement to pay in orders ; so that no promise to pay money was implied by law.

The corporation charged as trustees.