Page:Federal Reporter, 1st Series, Volume 3.djvu/205

198 PBDEEAIi REPOETER. �paid the debt if he had not been forbidden. Adams v. Cordls, 8 Pick. 260 ; Oriental Bank v, Tremont Ins. Co., 4 Met. 1 ; Bennell y. Kimhall, 5 Allen, 356; Bickford v. Rich, 105 Mass. 340; Huntress v. Burbank, 111 Mass. 213. �In the case last cited, Morton, J., says : "A debtor is not chargeable with interest as damages for delay in the payment of a debt, when such delay is caused by his being summoned as the trustee of the debtor." These words give the reason of the decision; and that reason fails in this case. Here the trustee processes were served upon the defendants after the actions against them were pending, and could not have been pleaded to these actions, nor have delayed payment. Wallace V. McConnell, 13 Pet. 136; Whipple v.Bohhins, 97 Ilass. 107. Our Massachusetts statute provides that in such case the pending action shall proceed to verdict or award, but that the court may, for goùd cause shown, continue the action for judgment until the trustee process is disposed of. Gen. St. c. 142, §§ 18, 19, No application was made to the court here for any such action, and when the appropriate time bas come, which is this time immediately before judgment, the trustee process bas been disposed of, and no such application is possible. �The defendants were not delayed by the foreign attachment, but were defending the case upon its merits during the whole period of the rise and decay of the trustee processes. They are not, therefore, within those cases which excuse debtors from paying interest when they may be assumed to have been prevented by superior power from satisfying the demand of the plaintiff. �Damages to be assessed, with interest, as usuaL ����