On several of the questions which the agreed facts present, and which have been ably and thoroughly argued, we express no opinion; because there is one ground on which, *117in our judgment, the alleged trustees must be discharged from this process, whatever might be our opinion on the other points that have been argued.
Supposing the institution for savings to have in their possession money which they are not entitled to hold, as against the owner of the. equity of redemption, yet we are of opinion that they do not hold it as trustees of Crawford, within the meaning of the Rev. Sts. c. 109. They received it on policies of insurance which were assigned to them, by the owner of the equity of redemption, as collateral security for the payment of the mortgage debt. The assignment contained this clause : “ Any surplus of the proceeds of said policies is to be paid to William Crawford, Jr. or his assigns.” This, if inserted bona fide, would doubtless justify the assignees of the policies in paying any sur • plus to Crawford; but it does not render them liable to an action by him to recover the surplus. It does not make them his debtors. There is no privity of contract between him and them. And as it does not appear that he was a creditor of the assignor of the policies, and that the assignor put them into the hands of the assignees for the purpose of their paying a debt due from him to Crawford, the case does not come within any former decision that an implied promise to A by B, • to pay money to C, will support an action thereon by C. And we are disinclined to any extension of that anomalous doctrine beyond the decisions which have been heretofore- made, and which are noticed in Mellen v. Whipple, 1 Gray, 322, 323. The present ease, therefore, comes within the established general rule, that a party is not chargeable in the trustee process, unless he is dable, in an action, to the principal defendant, or has in possession chattels of his, which might be seized and sold on execution. The facts of the case do not bring it within any exception evhich has been made to that rule.
Trustees discharged.