The defendant having been summoned as trustee of Leonard in an action against him, and the whole amount due to him having been paid over upon the execution issued upon the judgment in that suit, which ran against his goods, effects and credits in the hands of this defendant as trustee therein, is exonerated from further liability, if those proceedings were regular and valid. These facts are agreed, and shown also by the copies of the writ and execution, with the return upon each, annexed to the agreed statement. The execution recites the judgment against Leonard, and that “ execution was likewise awarded for the same sums against the goods, effects and credits of the said defendant, in the hands and possession of the Five Cents Savings Bank, a corporation duly established, trustee of the said defendant, as to us appears of record.” The regularity and validity of the proceedings, thus shown, is not impeached by the statement of the agreed facts that “ it did not appear by the record, nor by the docket of the said Police Court, that said savings bank was ever adjudged trustee.”

It is not to be inferred from this statement that the savings bank was discharged as trustee. The record is not produced. Whether it was imperfect, or merely incomplete, we have no means of knowing. It may have existed only in memoranda of the magistrate or clerk upon the writ or other papers on file. It would have been well for the parties to have caused the record to be made up if incomplete, or amended if imperfec*, before engaging in extended litigation upon its effect. In the absence of the record, the next best evidence of what the judgment was in fact, is the recital in the execution. The case having been submitted upon an agreed statement, it is too late to object to the competency of that evidence on the ground that the record should have been produced.

We do not intend to decide that the execution itself would not be a sufficient justification to the defendant in paying over, in *213good faith, to the officer making demand upon it, what was due to the judgment debtor, even if the record should show that the proceedings were irregular in omitting the formal adjudication charging the trustee.

The misnomer of the trustee can be taken advantage of only by the trustee. Judgment for the defendant affirmed,.