in giving the opinion of the Court, said in substance, that there was nothing in the answers to charge the respondents as trustees. The question raised was, whether the work was in advance of the payments, so as to make them chargeable It does not appear that it was. They an*4swer that in general they had paid in advance, but they cannot say that at no time was the balance against them. It was contended that they must discharge themselves, and the case of Sebor v Armstrong & Tr. was referred to, where the trustee answered that he had accepted a draft in favor of the princip; l defendant which be thought was payable to order The Court said that as he did not state the fact positively, and did not ask for time to make inquiry whether the draft was or was not payable to order, he should be charged. But this case is totally different; and though we wished for a more definite answer, there is good reason to believe a more definite one could not be given. For any sum which might be due from Jackson & Lincoln at their final settlement with Aiken A Cushing, they would be trustees, if summoned at that time.1

Trustees discharged.