If at the time of the service of a writ of foreign attachment the principal defendant and the trustee had cross-accounts, the balance being in favor of the trustee, and the accounts were settled by the payment of such balance by the principal defendant to the trustee, the trustee is not rendered chargeable by the fact that the principal defendant intended to pay him the amount of his account, and to collect at a later time his own account against the trustee, and would have done so if the trustee had not suggested the set-off.
BLODGETT, J.
At the time of the service of the plaintiff's process on the trustee, the defendant had in his possession moneys which he had collected for the trustee to an amount greater than the latter was owing him for services. Under these circumstances there was nothing in the hands of the trustee upon which the process could justly operate (Banfield v. Wiggin, 58 N.H. 155); and in the subsequent transactions between his foreman and the defendant nothing appears which affects the trustee's original liability, or gives the plaintiff any legal or equitable ground of complaint. As against him, it was the right of the trustee to set off all his demands against the defendant of which he could avail himself in any form of action, or by any lawful mode of adjustment between them (Cush. Trust. Pr., ss. 123, 125), and in what he did he in no way exceeded his right.
Exception overruled.
SMITH, J., did not sit: the others concurred.