Atkins v. Prescott

10 N.H. 120

• Court: Superior Court of New Hampshire
• Decided: July 15, 1839
• Status: Published

Opinion

Upham, J.

The trustee who is summoned in this case is a partner of French, and if liable at all is liable only as a member of that firm. He is, however, summoned merely in his individual capacity. But it is well settled in this state that one of two joint debtors cannot be charged as a trustee in a suit where the other debtor is not joined. 1 N. H. Rep. 184, Rix vs. Noyes & Trustee; 5 Ditto 538, Hudson vs. Hunt & Trustee.

Where a debtor holds a joint contract against two or more, and his creditor would avail himself of the benefit of this contract, under process of foreign attachment, he must summon all the parties liable by law to discharge it. 6 Mass. R. 62, Jewett vs. Bacon.

Where, also, an individual is the debtor of a firm, and is summoned as trustee of a portion of said firm only, he cannot be charged. 6 Mass. R. 490, Upham, vs. Naylor & Trustee.

In this ease, however, it is contended that as the member of the firm who is not summoned, resides without the state, service is sufficient on the partner residing within the jurisdiction of the court. This would be so were the members of the firm included in the action. Where such is the case the officer should make return of the fact that the co-partner is without the state, and also whether he has left goods or estate within his precinct. On such suit and return, judgment may be had against the partner residing within the state, who is properly notified. 16 Mass. R. 299, Parker & a. vs. Danforth & Trustee. But neither partner can be holden, unless the whole firm is joined in the action.

Had the partner been included in the writ, whether service was on him or not the firm would have been holden ; but the trustee would not have been required to disclose till he could have informed his partner of the pendency of the trustee process. If the partner had not paid the claim to the principal debtor, then he could not do it after such notice, except in his own wrong ,* and the trustee might well disclose as to the liability of the firm. Here no claim is made against the firm, and the trustee is in no manner liable.

Trustee discharged.